Exhibit 4.1
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MUTUAL RISK MANAGEMENT LTD.
TO
THE CHASE MANHATTAN BANK
as Trustee
______________
Senior Indenture
Dated as of ________ __, 2000
______________
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TABLE OF CONTENTS
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Page
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Recitals of the Company
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1. Definitions................................................................... 1
Section 1.2. Compliance Certificates and Opinions.......................................... 8
Section 1.3. Forms of Documents Delivered to Trustee....................................... 9
Section 1.4. Acts of Holders; Record Dates................................................. 9
Section 1.5. Notices, Etc., to Trustee and Company......................................... 11
Section 1.6. Notice to Holders; Waiver..................................................... 12
Section 1.7. Conflict with Trust Indenture Act............................................. 12
Section 1.8. Effect of Headings and Table of Contents...................................... 12
Section 1.9. Successors and Assigns........................................................ 12
Section 1.10. Separability Clause........................................................... 12
Section 1.11. Benefits of Indenture......................................................... 13
Section 1.12. Governing Law................................................................. 13
Section 1.13. Non-Business Days............................................................. 13
ARTICLE II
Security Forms
Section 2.1. Forms Generally............................................................... 14
Section 2.2. Form of Face of Security...................................................... 14
Section 2.3. Form of Reverse of Security................................................... 16
Section 2.4. Additional Provisions Required in Global Security............................. 18
Section 2.5. Form of Trustee's Certificate of Authentication............................... 19
ARTICLE III
The Securities
Section 3.1. Title and Terms............................................................... 20
Section 3.2. Denominations................................................................. 22
Section 3.3. Execution, Authentication, Delivery and Dating................................ 22
Section 3.4. Temporary Securities.......................................................... 24
Section 3.5. Global Securities............................................................. 24
Section 3.6. Registration, Transfer and Exchange........................................... 25
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 3.8. Payment of Interest; Interest Rights Preserved.................................................... 27
Section 3.9. Persons Deemed Owners............................................................................. 28
Section 3.10. Cancellation...................................................................................... 29
Section 3.11. Computation of Interest........................................................................... 29
Section 3.12. Shortening and Extending Stated Maturity.......................................................... 29
Section 3.13. CUSIP Numbers..................................................................................... 30
ARTICLE IV
Satisfaction And Discharge
Section 4.1. Satisfaction and Discharge of Indenture........................................................... 30
Section 4.2. Application of Trust Money........................................................................ 31
ARTICLE V
Remedies
Section 5.1. Events of Default................................................................................. 32
Section 5.2. Acceleration of Maturity; Rescission and Annulment................................................ 33
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee................................... 35
Section 5.4. Trustee May File Proofs of Claim.................................................................. 35
Section 5.5. Trustee May Enforce Claims Without Possession of Securities....................................... 36
Section 5.6. Application of Money Collected.................................................................... 36
Section 5.7. Limitation on Suits............................................................................... 36
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Additional Amounts................................................................ 37
Section 5.9. Restoration of Rights and Remedies................................................................ 37
Section 5.10. Rights and Remedies Cumulative.................................................................... 38
Section 5.11. Delay or Omission Not Waiver...................................................................... 38
Section 5.12. Control by Holders................................................................................ 38
Section 5.13. Waiver of Past Defaults........................................................................... 38
Section 5.14. Undertaking for Costs............................................................................. 39
Section 5.15. Waiver of Usury, Stay or Extension Laws........................................................... 39
ARTICLE VI
The Trustee
Section 6.1. Certain Duties and Responsibilities............................................................... 40
Section 6.2. Notice of Defaults................................................................................ 40
Section 6.3. Certain Rights of Trustee......................................................................... 40
Section 6.4. Not Responsible for Recitals or Issuance of Securities............................................ 42
Section 6.5. May Hold Securities............................................................................... 42
Section 6.6. Money Held in Trust............................................................................... 42
Section 6.7. Compensation and Reimbursement.................................................................... 42
Section 6.8. Conflicting Interests............................................................................. 43
Section 6.9. Corporate Trustee Required; Eligibility........................................................... 43
Section 6.10. Resignation and Removal; Appointment of Successor................................................. 44
Section 6.11. Acceptance of Appointment by Successor............................................................ 45
Section 6.12. Merger, Conversion, Consolidation or Succession to Business....................................... 46
Section 6.13. Preferential Collection of Claims Against Company................................................. 46
Section 6.14. Appointment of Authenticating Agent............................................................... 46
ARTICLE VII
Holder's Lists and Reports By Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders......................................... 48
Section 7.2. Preservation of Information; Communications to Holders............................................ 48
Section 7.3. Reports by Trustee................................................................................ 49
Section 7.4. Reports by Company................................................................................ 49
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.............................................. 50
Section 8.2. Successor Substituted............................................................................. 50
ARTICLE IX
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of Holders................................................ 51
Section 9.2. Supplemental Indentures With Consent of Holders................................................... 52
Section 9.3. Execution of Supplemental Indentures.............................................................. 53
Section 9.4. Effect of Supplemental Indentures................................................................. 53
Section 9.5. Conformity with Trust Indenture Act............................................................... 53
Section 9.6. Reference in Securities to Supplemental Indentures................................................ 53
ARTICLE X
Covenants
Section 10.1. Payment of Principal, Premium and Interest. ...................................................... 54
Section 10.2. Maintenance of Office or Agency................................................................... 54
Section 10.3. Money for Security Payments to be Held in Trust................................................... 54
Section 10.4. Statement by Officers as to Compliance............................................................ 56
Section 10.5. Additional Amounts................................................................................ 56
Section 10.6. Limitation on Liens on Stock of Significant Subsidiaries.......................................... 58
Section 10.7. Limitation on Disposition of Stock of Significant Subsidiaries.................................... 58
Section 10.8. Original Issue Discount........................................................................... 58
Section 10.9. Waiver of Certain Covenants....................................................................... 59
ARTICLE XI
Redemption of Securities
Section 11.1. Applicability of Article.......................................................................... 59
Section 11.2. Election to Redeem; Notice to Trustee............................................................. 59
Section 11.3. Selection of Securities to be Redeemed............................................................ 59
Section 11.4. Notice of Redemption.............................................................................. 60
Section 11.5. Deposit of Redemption Price....................................................................... 61
Section 11.6. Payment of Securities Called for Redemption....................................................... 61
Section 11.7. Securities Redeemed in Part....................................................................... 62
ARTICLE XII
Sinking Funds
Section 12.1. Applicability of Article.......................................................................... 62
Section 12.2. Satisfaction of Sinking Fund Payments with Securities............................................. 62
Section 12.3. Redemption of Securities for Sinking Fund......................................................... 63
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance...................................... 64
Section 13.2. Defeasance and Discharge.......................................................................... 64
Section 13.3. Covenant Defeasance............................................................................... 65
Section 13.4. Conditions to Defeasance or Covenant Defeasance................................................... 65
Section 13.5. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions.......................................................................... 67
Section 13.6. Reinstatement..................................................................................... 67
Section 13.7. Qualifying Trustee................................................................................ 68
..............................
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S). 310(a)(1) ........................................................ 6.9
(a)(2) ........................................................ 6.9
(a)(3) ........................................................ Not Applicable
(a)(4) ........................................................ Not Applicable
(b) ........................................................ 6.8
6.10
(S). 311(a) ........................................................ 6.13
(b) ........................................................ 6.13
(S). 312(a) ........................................................ 7.1
7.2
(b) ........................................................ 7.2
(c) ........................................................ 7.2
(S). 313(a) ........................................................ 7.3
(b) ........................................................ 7.3
(c) ........................................................ 7.3
(d) ........................................................ 7.3
(S). 314(a) ........................................................ 7.4
(a)(4) ........................................................ 1.2
10.4
10.5
(b) ........................................................ Not Applicable
(c)(1) ........................................................ 1.2
(c)(2) ........................................................ 1.2
(c)(3) ........................................................ Not Applicable
(d) ........................................................ Not Applicable
(e) ........................................................ 10.2
(S). 315(a) ........................................................ 6.1
(b) ........................................................ 6.2
(c) ........................................................ 6.1
(d) ........................................................ 6.1
(e) ........................................................ 5.14
(S). 316(a) ........................................................ 5.12
(a)(1)(A) ........................................................ 5.2
5.12
(a)(1)(B) ........................................................ 5.13
(a)(2) ........................................................ Not Applicable
(b) ........................................................ 5.8
(c) ........................................................ 1.4
(S). 317(a)(1) ........................................................ 5.3
(a)(2) ........................................................ 5.4
(b) ........................................................ 10.3
(S). 318(a) ........................................................ 10.7
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
SENIOR INDENTURE, dated as of __________ __, 2000, between MUTUAL RISK
MANAGEMENT LTD., a corporation duly organized and existing under the laws of
Bermuda (herein called the "Company"), having its principal office at 44 Church
Street, Hamilton HM12 Bermuda, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided;
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done; and
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. 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 that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) the words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(4) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles;
(5) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture;
(6) whenever the context may require, any gender shall be deemed to
include the others;
(7) the words "hereby," "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 sub division; and
(8) the word "or" is always used inclusively (for example the phrase
"A or B" means "A or B or both," not "either A or B but not both").
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.5.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"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, in each case to the
extent applicable to such transaction and as in effect from time to time.
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"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee is closed for business.
"Calculation Agent," with respect to Securities of any series that bear
interest determined by reference to a Floating Rate Index, means the Person
designated as Calculation Agent by the Company pursuant to Section 3.1 with
respect to such series.
"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.
"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" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, its Vice Chairman of the Board of Directors, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 450 West
33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services.
"Covenant Defeasance" has the meaning specified in Section 13.3.
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"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent and without
duplication, (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); (v) every capital lease obligation of
such Person; (vi) every obligation of such Person pursuant to derivative
products, including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; (vii) every obligation of
the type referred to in clauses (i) through (vi) 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 for, directly or indirectly, as
obligor or otherwise; and (viii) any renewals, extensions, refundings,
amendments or modifications of any obligation of the type referred to in clauses
(i) through (vii).
"Defaulted Interest" has the meaning specified in Section 3.8.
"Defeasance" has the meaning specified in Section 13.2.
"Depositary" means, with respect to Securities of any series issued or
issuable in whole or in part in the form of one or more Global Securities, an
organization registered as a clearing agency under the Exchange Act that is
designated as Depositary for such Securities as contemplated by Section 3.1 with
respect to such Securities.
"Discount Security" means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollar" or "$" means the currency of the United States of America that,
as at the time of payment, is legal tender for the payment of public and private
debts.
"Event of Default," unless otherwise specified with respect to a series of
Securities as contemplated by Section 3.1, has the meaning specified in Section
5.1.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(g).
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"Floating Rate Index" means, with respect to Securities of any series that
bear a floating interest rate, the index specified as the Floating Rate Index by
the Company pursuant to Section 3.1 with respect to such series.
"Global Security" means a Security that evidences all or part of the
Securities of any series and that bears the legend set forth in Section 2.4 (or
such legend as may be specified as contemplated by Section 3.1) issued to the
Depositary or its nominee for such series and registered in the name of such
Depositary or its nominee.
"Government Obligation" means (a) any security which is (i) a direct
obligation of the United States of America or the government that issued the
foreign currency in which such Securities are or may be payable for the payment
of which the full faith and credit of the United States of America or such
foreign government is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such foreign government the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America
or such foreign government, which, in either case (i) or (ii), is not callable
or redeemable at the option of the issuer thereof, and (b) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act)
as custodian with respect to any Govern ment Obligation which is specified in
clause (a) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any Government Obligation which is so specified and held, provided,
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be amended or supplemented by one or more amendments or
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any such
amendment or supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such
amendment or supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means, with respect to any Security, the Stated
Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 or any
successor statute thereto, in each case as amended from time to time.
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"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or any installment 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 5.1(d) or 5.1(e).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company or any Affiliate of the Company.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used with respect to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities 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 Securities; provided, that if such Securities 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) Securities as to which Defeasance has been effected pursuant to
Section 13.2;
(iv) Securities which have been paid pursuant to Section 3.7 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to the provisions of this Indenture, unless proof
satisfactory to the Trustee is presented that any such Securities are held by
a bona fide purchaser in
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whose hands such Securities are valid, binding and legal obligations of the
Company; and
(v) Securities converted or exchanged into other securities of the
Company if the terms of such Securities provide for conversion or exchange
pursuant to Section 3.1;
provided, that in determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or 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
Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned that 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
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor. Upon the
written request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or any Affiliate of the Company
or such obligor, and subject to the provisions of Section 6.1, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, any premium or interest on or other amounts with respect to any
Securities on behalf of the Company.
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof or any other entity of whatever nature.
"Place of Payment" means, with respect to the Securities of any series,
the place or places where the principal of, any premium and interest on or any
Additional Amounts with respect to the Securities of that series are payable as
specified pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any Security
authenticated
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and delivered under Section 3.7 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.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed fixed by or pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of such series, the date that
is fifteen days next preceding such Interest Payment Date (whether or not a
Business Day).
"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
senior trust officer, 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 knowledge of and familiarity with the particular
subject.
"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Significant Subsidiary" means a Subsidiary of the Company that
constitutes a "significant subsidiary" of the Company as such term is defined in
Rule 1-02(w) of Regulation S-X.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, or any Additional Amounts
with respect
-8-
thereto, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is,
or such Additional Amounts are, due and payable, as such date may, in the case
of the Stated Maturity of the principal on any Security, be shortened or
extended as provided in such Security and this Indenture.
"Subsidiary" means, in respect of any Person, a Person more than 50% of
the outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries, or by such Person and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock that ordinarily has voting power 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in effect on the date of this Indenture; provided, 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.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument, solely in its capacity as such and not in its individual
capacity, 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 Securities of
any series shall mean the Trustee with respect to Securities of that series.
Section 1.2. Compliance Certificates and Opinions.
(a) 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 an Officers' Certificate, stating that all conditions precedent
(including covenants compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Sections 10.4 and 10.5) shall include,
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he or
she has made such exami nation or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3. Forms of Documents Delivered to Trustee.
(a) 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.
(b) 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 after reasonable inquiry
that the certificate or opinion or representations with respect to the matters
upon which his or her 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
after reasonable inquiry that the certificate or opinion or representations with
respect to such matters are erroneous.
(c) 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.
-10-
(d) Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officers' Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally received in the corrected form and, irrespective of the date or dates
of the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Without limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to the benefits of
this Indenture equally and ratably with all other Outstanding Securities.
Section 1.4. 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, made 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 is or 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 conclusive in favor of the Trustee, the Company
and any agent 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 the 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 Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution by any Person 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 ownership of Securities shall be proved by the Securities
Register.
-11-
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided, that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in paragraph (f) of this Section.
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided, that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect). Promptly after any record date is set pursuant
to this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(b) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided, that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by
-12-
any Person be cancelled and of no effect). Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
(g) With respect to any record date set pursuant to paragraph (e) or (f)
of this Section, the party hereto that sets such record date may designate any
day as the "Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day; provided, that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record
date shall be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph.
(h) Without limiting the foregoing, a Holder entitled to take any action
hereunder with regard to any particular Security may do so with regard to all or
any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 1.5. 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:
(a) 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, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose (except as otherwise provided in Section 5.1) hereunder 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: General Counsel, or at any other address
previously furnished in writing to the Trustee by the Company.
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Section 1.6. 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 the address of such Holder as it appears in the Securities
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. 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. If, by
reason of the suspension of or irregularities in regular mail service or for any
other reason, it shall be impossible or impracticable to mail notice of any
event to Holders when said notice is required to be given pursuant to any
provision of this Indenture or any Security, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be sufficient
notification for every purpose hereunder. 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.
Section 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture 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 which may be so modified or excluded, the provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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Section 1.10. Separability Clause.
If any provision in this Indenture or in the Securities 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflict of
laws provisions thereof.
Section 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest, premium or principal on or other amounts in
respect of such Security need not be made on such date, but may be made on the
next succeeding Business Day (and no interest shall accrue in respect of the
amounts whose payment is so delayed for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, until such
next succeeding Business Day) except that, if such Business Day falls 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 the Interest Payment Date or Redemption Date or at the Stated Maturity).
Section 1.14. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, any premium or interest
on or any other amounts with respect to any Security, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any
supplemental indenture, or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past,
-15-
present or future, of the Company or of any successor company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issue of the
Securities.
Section 1.15. Submission to Jurisdiction.
The Company agrees that any judicial proceedings instituted in relation to
any matter arising under this Indenture or the Securities may be brought in any
United States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York to the extent that such court has
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Indenture, the Company hereby irrevocably accepts, generally and
unconditionally, the jurisdiction of the aforesaid courts, acknowledges their
competence and irrevocably agrees to be bound by any judgment rendered in such
proceeding. The Company also irrevocably and unconditionally waives for the
benefit of the Trustee and the Holders of the Securities any immunity from
jurisdiction and any immunity from legal process (whether through services of
notice, attachment prior to judgment, attachment in the aid of execution,
execution or otherwise) in respect of this Indenture. The Company hereby
irrevocably designates and appoints for the benefit of the Trustee and the
Holders of the Securities for the term of this Indenture, CT Corporation, 111
8th Avenue, New York, New York 10011, as its agent to receive on its behalf
service of all process (with a copy of all such service of process to be
delivered to Mutual Risk Management Ltd., 44 Church Street, Hamilton HM12
Bermuda, Attention: General Counsel) brought against it with respect to any such
proceeding in any such court in The City of New York, such service being hereby
acknowledged by the Company to be effective and binding service on it in every
respect whether or not the Company shall then be doing, or shall have at any
time done, business in New York. Such appointment shall be irrevocable so long
as any of the Securities or the obligations of the Company hereunder remain
outstanding until the appointment of a successor by the Company and such
successor's acceptance of such appointment. Upon such acceptance, the Company
shall notify the Trustee of the name and address of such successor. The Company
further agrees for the benefit of the Trustee and the Holders of the Securities
to take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such designation
and appointment of said CT Corporation in full force and effect so long as any
of the Securities or the obligations of the Company hereunder shall be
outstanding. The Trustee shall not be obligated, and shall have no
responsibility, with respect to any failure by the Company to take any such
action. Nothing herein shall affect the right of the Trustee or any Holder to
institute proceedings against the Company in the courts of any other
jurisdiction or jurisdictions.
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ARTICLE II
Security Forms
Section 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in sub stantially the form or forms set forth in this
Article, or in such other forms 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 per mitted 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 applicable tax laws or the rules of
any securities exchange or Depositary therefor or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities 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 Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.3 with respect to
the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
Section 2.2. Form of Face of Security.
Mutual Risk Management Ltd.
[Title of Security]
No. $
MUTUAL RISK MANAGEMENT LTD., a corporation organized and existing under
the laws of Bermuda (hereinafter called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of __________ Dollars on __________ __, ___ [if the
Security is a Global Security, then insert-- or such other principal amount
represented hereby as
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may be set forth in the records of the Securities Registrar hereinafter referred
to in accordance with the Indenture,] [; provided, that the Company may shorten
or extend the Stated Maturity of the principal of this Security to a date not
earlier than ________ and not later than ________ at any time on one or more
occasions, subject to certain conditions specified in Section 3.12 of the
Indenture.] The Company further promises to pay interest on said principal sum
from ________, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, [monthly] [quarterly] [semi-annually] in
arrears on [insert applicable Interest Payment Dates] of each year, commencing
________, , at the rate [if fixed rate, insert-- of ____%] [if floating rate,
insert---equal to ___% in excess of the Floating Rate Index] per annum, until
the principal hereof is paid or duly provided for or made available for payment
[if applicable, insert-- ; provided, that any overdue principal, premium,
Additional Amounts and any overdue installment of interest shall bear additional
interest at the rate [if fixed rate, insert --- of _____%] [if floating rate,
insert --- equal to ____% in excess of the Floating Rate Index] per annum (to
the extent that the payment of such interest shall be legally enforceable),
compounded [monthly] [quarterly] [semi-annually], from the dates such amounts
are due until they are paid or made available for payment, and such interest
shall be payable on demand]. The amount of interest payable for any period less
than a full interest period shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in such
period. The amount of interest payable for any full interest period shall be
computed by dividing the applicable rate per annum by [twelve/four/two]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date shall, as provided in the Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest installment [if
applicable, insert--, 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 shall
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 Security (or one or more
Predecessor Securities) 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 Securities 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 Securities 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 Company is also obligated to pay any Additional Amounts
as described in Section 10.5 of the Indenture.
Payment of the principal of, any premium and interest on or any Additional
Amounts with respect to this Security will be made at the office or agency of
the Company maintained for that purpose in the [insert Place of Payment], in
such coin or currency of the United States of America as at the time of payment
is legal tender
-18-
for payment of public and private debts [if applicable, insert--; provided, that
at the option of the Company payment of interest may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Securities Register or (ii) by wire transfer to an account at a banking
institution in the United States that the Holder designates in writing to the
Trustee at least 10 Business Days prior to the Interest Payment Date].
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS 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 Security
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.
MUTUAL RISK MANAGEMENT LTD.
By:______________________________
Name:
Title:
Attest:
_________________________________________
[Secretary or Assistant Secretary]
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under the Senior Indenture, dated as of ___________, (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank 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 Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert--, limited in aggregate
principal amount to $______].
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All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The terms of this Security include those stated in the Indenture and those
made a part of the Indenture by reference to the Trust Indenture Act. This
Security is subject to all such terms and the Holder of this Security is
referred to the Indenture and the Trust Indenture Act for a statement of such
terms.
[If applicable, insert--The Company may at any time, at its option, on or
after _________, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, at [if applicable, insert-- the following Redemption Prices (expressed as
percentages of the principal amount hereof):
If redeemed during the 12-month period beginning _____________,
Redemption
Year Price
---- -----
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest to
but excluding the date fixed for redemption,] [a Redemption Price equal to 100%
of the principal amount hereof, together, in the case of any such redemption,
with accrued interest to but excluding the date fixed for redemption.]
[If the Security is subject to redemption of any kind, insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Securities of this series are not redeemable
prior to Stated Maturity.]
[The Indenture contains provisions for satisfaction and discharge of [the
entire indebtedness of] [or] [certain restrictive covenants and Events of
Default with respect to] this Security [, in each case] upon compliance by the
Company with certain conditions set forth in the Indenture.]
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of
-20-
the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities 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. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this 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 the principal
amount of and the accrued interest on all the Securities of this series shall
become immediately due and payable.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, any premium and interest on
and any Additional Amounts with respect to this Security 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 Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the
-21-
Company and the Securities Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $___________ and any integral multiple of
$____________ in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and none of the
Company, the Trustee or any such agent shall be affected by notice to the
contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE."
SECTION 2.5. Form of Trustee's Certificate of Authentication.
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The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
By:__________________________
Authorized officer
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate or established in one or more indentures supplemental hereto:
(a) the title of the securities of such series, which shall distinguish
the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to the provisions of this Indenture and
except for any Securities that, pursuant to Section 3.3, are deemed never to
have been authenticated and delivered hereunder);
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof,
and any dates on which or circumstances under which, the Company shall have
the right to extend or shorten such Stated Maturity or Maturities;
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(d) the rate or rates at which the Securities of such series shall bear
interest, if any, and, if such interest is determined by reference to a
floating interest rate, the Floating Rate Index and Calculation Agent, the
date or dates from which any such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable, and the Regular Record Date
for the interest payable on any Interest Payment Date or the method by which
any of the foregoing shall be determined;
(e) the extent, if any, to which the Securities of such series will be
secured;
(f) the place or places where the principal of, any premium and
interest on and any Additional Amounts with respect to the Securities of such
series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, any
restrictions that may be applicable to any such transfer or exchange in
addition to or in lieu of those set forth herein, and the place or places
where notices and demands to or upon the Company in respect of the Securities
of such series may be made;
(g) the obligation of the Company to redeem, repay or purchase the
Securities of such series pursuant to any sinking fund, amortization or
analogous provisions, or at the option of the Company or a Holder thereof,
and the period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in which and the
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation or option;
(h) if the amount of principal of or any premium or interest on any
Securities of such series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined.
(i) if other than Dollars, the currency or currencies (including any
currency unit or units) in which the principal of, any premium and interest
on and any Additional Amounts with respect to the Securities of the series
shall be payable, or in which the Securities of the series shall be
denominated and the manner of determining the equivalent thereof in Dollars
for any purpose, including for purposes of the definition of Outstanding;
(j) if the principal of, any premium or interest on or any Additional
Amounts with respect to any Securities of the series is to be payable, at the
election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated
to be payable, the currency, currencies or currency units in which the prin
cipal of, any premium or interest on or any Additional Amounts with respect
to such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable or the manner in which such amount shall
be determined;
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(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined;
(m) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 13.2 or Section 13.3
or both such Sections;
(n) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends that shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 2.4 and any circumstances in
addition to or in lieu of those set forth in Section 3.5 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part may
be registered, in the name or names of Persons other than the Depositary for
such Global Security or a nominee thereof;
(o) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(p) the appointment of any Paying Agent or agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the
additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(r) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof; and
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(s) any other terms of the Securities of such series (which terms shall
not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(e)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth in such Officers' Certificate or
in any indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and in denominations of $1,000 and any integral multiple of
$1,000 in excess thereof, unless otherwise specified as contemplated by Section
3.1.
Section 3.3. Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Securities 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 Securities or
did not hold such offices at the date of such Securities.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in
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relation to such Securities, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating:
(i) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form has
been established in conformity with the provisions of this Indenture;
(ii) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
and
(iii) that such Securities, 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 and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
indemnities or immunities under the Securities and this Indenture or otherwise
in a manner that is not reasonably acceptable to the Trustee.
(c) Notwithstanding the provisions of Section 3.1 and of paragraph (b) of
this Section, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.1 or the Company Order and Opinion of
Counsel otherwise required pursuant to paragraph (b) of this Section at or prior
to the authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
(d) No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for can cellation as
provided in Section 3.10, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
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(e) Each Security shall be dated the date of its authentication.
Section 3.4. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denom ination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
(b) If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denom inations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be registered
in the name of the Depositary designated by the Company for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary advises the Trustee and the Company in
writing that such Depositary is no longer willing or able to properly discharge
its responsibilities as Depositary with respect to such Global Security and no
qualified successor is appointed by the Company within 90
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days of receipt by the Company of such notice, (ii) such Depositary has ceased
to be a clearing agency registered under the Exchange Act and no qualified
successor is appointed by the Company within 90 days after its receipt of notice
or its becoming aware of such event, (iii) the Company executes and delivers to
the Trustee a Company Order stating that the Company elects to terminate the
book-entry system through the Depositary, or (iv) there shall have occurred and
be continuing an Event of Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancellation as provided
in this Article. If any Global Security is to be exchanged for other Securities
or cancelled in part, or if another Security is to be exchanged in whole or in
part for a beneficial interest in any Global Security, then either (i) such
Global Security shall be so surrendered for exchange or cancellation as provided
in this Article or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
cancelled, or equal to the principal amount of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Security by the Depositary, accompanied by registration instructions, the
Trustee shall, subject to this Section and as otherwise provided in this
Article, authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) in accordance with the instructions of
the Depositary. The Trustee shall not be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article, Section 9.6 or 11.7 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
Neither the Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
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(f) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
(g) The registered holder of a Global Security may grant proxies to any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture and the Securities.
Section 3.6. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office a
register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities (the "Securities Register"). The Trustee is hereby appointed
"Securities Registrar" for the purpose of registering Securities and transfers
of Securities as herein provided.
(b) Upon surrender for registration of transfer of any Security of a
series at the office or agency of the Company designated for that purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations and of like tenor and aggregate
principal amount.
(c) At the option of the Holder, Securities of a series may be exchanged
for other Securities of the same series of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
(d) All Securities issued upon any transfer or exchange of Securities
shall be the valid obli gations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(e) Every Security presented or surrendered for transfer or exchange 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 Securities Registrar, duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing.
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(f) No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities.
(g) The Company shall not be required (A) to issue, register the transfer
of or exchange any Securities of that series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.3 and
ending at the close of business on the day of such mailing or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
(h) Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other Security.
Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series,
of like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series, of like
tenor and principal amount as such destroyed, lost or stolen Security and
bearing a number not contemporaneously outstanding.
(c) If any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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(e) Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security 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 Securities of the same series duly
issued hereunder.
(f) 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 Securities.
Section 3.8. Payment of Interest; Interest Rights Preserved.
(a) Except as otherwise contemplated by Section 3.1 with respect to any
series of Securities, interest on any Security of any series that 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 Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the
Stated Maturity, redemption or repayment of the principal of a Security shall be
paid to the Person to whom principal is paid. The initial payment of interest on
any Security of any series that is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution pursuant to Section 3.1 with respect to the related
series of Securities.
(b) Any interest on any Security of any series that is due and payable,
but is not timely paid or duly provided for, on any Interest Payment Date for
Securities of such series (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 paragraph (i) or (ii)
below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) 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 Security of such series and the date of the proposed payment at
least 30 days prior to such date, 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
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deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest. 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 10 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 given to each Holder
of Securities of such series in the manner set forth in Section 1.6, 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 Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date; or
(ii) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities 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.
(c) Unless otherwise provided in or pursuant to this Indenture or any
supplemental indenture, interest on the Securities of any series will be
payable, at the option of the Company, (i) by check mailed to the address of the
Holder as such address appears in the Securities Register for the Securities of
such series or (ii) by wire transfer to an account at a banking institution in
the United States that the Holder designates in writing to the Trustee at least
10 Business Days prior to the Interest Payment Date.
Section 3.9. Persons Deemed Owners.
(a) Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, any premium and
(subject to Section 3.8) interest on and any Additional Amounts with respect to
such Security and for all other purposes whatsoever, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
(b) No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee
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and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever. None of the Company, the Trustee or any agent of
the Company or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary or
impair, as between a Depositary and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of any Security.
Section 3.10. Cancellation.
All Securities surrendered for payment, redemption, 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 any such
Securities delivered to the Trustee for any purpose shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder that the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of in accordance with its customary practices and the
Trustee shall deliver to the Company a certificate of such disposition.
Section 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
partial period shall be computed on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in any partial month in such
period, and interest on the Securities of each series for a full period shall be
computed by dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.
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Section 3.12. Shortening and Extending Stated Maturity.
(a) If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of any series, the Company shall have the right to
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series. In the event that the Company
elects to shorten the Stated Maturity of the Securities of such series, it shall
give written notice to the Trustee.
(b) If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of any series, the Company shall have the right to
extend the Stated Maturity of the principal of the Securities of such series at
any time. In the event that the Company elects to extend the Stated Maturity of
the Securities of such series, it shall give written notice to the Trustee.
Section 3.13. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption and other similar or related matters as a convenience to Holders;
provided, that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
ARTICLE IV
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture.
Upon a Company Request, this Indenture shall cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section) and the Trustee, on the demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than
(A) Securities that have been mutilated, destroyed, lost or stolen and
that have
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been replaced or paid as provided in Section 3.7 and (B) Securities 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
dis charged from such trust as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year of the date of deposit, or
(C) 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 paragraph (ii)(A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose (x) an amount in the currency or currencies in
which the Securities of such series are payable, (y) Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later
than the due date of any payment, money in an amount or (z) a combination
thereof, in each case where any Government Obligations are deposited, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, sufficient to pay and dis charge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal, any premium and interest and any Additional Amounts in respect
thereof to the date of such deposit (in the case of Securities that have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) 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
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been
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deposited with the Trustee pursuant to paragraph (a)(ii) of this Section, the
obligations of the Trustee under Section 4.2 and Section 10.3(e) shall survive.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 4.1 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Section 4.2. Application of Trust Money.
Subject to the provisions of Section 10.3(e), all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Securities 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, interest and Additional Amounts for the payment
of which such money and Government Obligations (including the proceeds thereof)
have been deposited with or received by the Trustee.
ARTICLE V
Remedies
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) except
as may be specified pursuant to Section 3.1:
(a) default in the payment of any interest upon any Security of that
series, or any Additional Amounts payable with respect thereto, when such
interest becomes, or such Additional Amounts become, due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any
Security of that series at its Maturity, or any Additional Amounts payable
with respect
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thereto, when such principal or premium becomes, or such Additional Amounts
become, due and payable at their Maturity; or
(c) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of such series; or
(d) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is specifically dealt with elsewhere in
this Section or that has expressly been included in this Indenture solely for
the benefit of series of Securities other than such series), and continuance
of such default or breach for a period of 30 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless the Trustee, or the Trustee
and the Holders of a principal amount of Securities of such series not less
than the principal amount of Securities that gave such notice, as the case
may be, shall agree in writing to an extension of such period prior to its
expiration; or
(e) a default under any (i) indebtedness for any money borrowed by the
Company (including a default with respect to Securities of any series other
than that series), (ii) mortgage, indenture or other instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company, or (iii) guarantee of payment
for money borrowed, which default shall consist of a payment default at the
stated maturity thereof, after giving effect to any applicable grace period,
or shall have resulted in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness or accelerated indebtedness having been
discharged, or such acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company to cause such indebtedness or accelerated indebtedness
to be discharged or cause such acceleration to be rescinded or annulled, as
the case may be, and stating that such notice is a "Notice of Default"
hereunder; provided, that a default shall exist under this subsection only if
the aggregate principal amount outstanding under all such indebtedness that
is so in default or has become due prior to the date on which it would
otherwise become due and payable exceeds $40,000,000; or
(f) the Company shall fail within 60 days to pay, bond or otherwise
discharge any uninsured judgment or court order for the payment of money in
excess of
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$40,000,000, which is not stayed on appeal or is not otherwise being
appropriately contested in good faith; or
(g) the entry by a court having jurisdiction in the premises of a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal,
state or foreign bankruptcy, insolvency, reorganization or other similar law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of the Company's property, or ordering the winding up or liquidation of
the Company's affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(h) the filing by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable federal, state or foreign
bankruptcy, insolvency, reorganization or other similar law, or the consent
by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of the Company's property, or the making by the Company of an assignment
for the benefit of creditors, or the admission by it in writing of the
Company's inability to pay its debts generally as they become due, or the
authorization of any such action by the Board of Directors; or
(i) any other Event of Default provided with respect to Securities of that
series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event or Default specified in Section 5.1(g) or
(h)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount of, all unpaid
accrued interest and premium on and Additional Amounts with respect to all of
the Securities of that series (or, if the Securities of that series are Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms 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 (or specified portion thereof)
of, accrued interest, premium and Additional Amounts on all of the Securities of
such series shall become immediately due and payable.
If an Event of Default specified in Section 5.1(g) or (h) occurs, all
unpaid principal of, accrued interest and premium on and Additional Amounts with
respect
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to the Outstanding Securities of that series (or such lesser amount as may be
provided for in the Securities of such series) shall automatically become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of any Security of that series.
(b) At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue installments of interest on all Securities of that
series and any Additional Amounts with respect thereto,
(B) the principal of and any premium on any Securities of that series
which have become due otherwise than by such declaration of acceleration
and any Additional Amounts with respect thereto and any interest at the
rate prescribed therefor in such Securities,
(C) all overdue sinking fund payments with respect to Securities of
such series and interest thereon at the rate prescribed therefor in such
Securities,
(D) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest and Additional Amounts at the rate
prescribed therefor in such Securities, and
(E) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(ii) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
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Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that if
(i) default is made in the payment of any installment of interest on
or any Additional Amounts, payable with respect to such interest, with
respect to any Security of any series when such interest or Additional
Amounts shall have become due and payable and such default continues for a
period of 30 days, or
(ii) default is made in the payment of the principal of or any premium
on any Security or any Additional Amounts with respect thereto at the
Maturity thereof, or
(iii) default is made in the deposit of any sinking fund payment, when
and as due by the terms of a Security of any series,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal and any premium and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal, premium interest and Additional
Amounts at the rate prescribed therefor in such Securities, and, in addition
thereto, all amounts owing to the Trustee, its agents and counsel under Section
6.7.
(b) If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Security, wherever
situated.
(c) If an Event of Default with respect to Securities of any 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 Securities 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.
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Section 5.4. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, 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 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 to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay any amounts due the Trustee, its agents and counsel under Section 6.7.
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 Securities
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, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
Section 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities 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 all the amounts owing the Trustee, its agents and counsel
under Section 6.7, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee pursuant
to this Article with respect to a series of Securities 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 or property on account of principal or any premium,
interest or Additional Amounts, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
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First: To the payment of all amounts due the Trustee, its agents and
counsel under Section 6.7;
Second: To the payment of the amounts then due and unpaid for principal of
and any premium, interest and Additional Amounts on the Securities 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 Securities for principal, any premium and interest and
Additional Amounts, respectively; and
Third: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Security of any series shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver, assignee, trustee,
liquidator, sequestor (or other similar official) or for any other remedy
hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities 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;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding for 60 days ; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities 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 itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
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Section 5.8. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Section 3.8) interest on and any Additional Amounts with respect to such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, 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 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in Section 3.7(f), 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 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 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.
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Section 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any 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 Securities of such series, provided, that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow any such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding
so directed would be unjustly prejudicial to the Holders not joining in any
such direction or involve the Trustee in personal liability.
Section 5.13. Waiver of Past Defaults.
(a) The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past Event of Default hereunder with
respect to such series and its consequences, except an Event of Default
(i) in the payment of the principal of, any premium or interest on or
any Additional Amounts with respect to any Security of such series (unless
such Event of Default has been cured and the Company has paid to and
deposited with the Trustee a sum sufficient to pay all matured installments
of interest and all principal of, any premium on and any Additional Amounts
with respect to all Securities of that series due otherwise than by
acceleration) or
(ii) in respect of a covenant or provision hereof that under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
(b) Any such waiver shall be deemed to be on behalf of the Holders of all
the Securities of such series.
(c) Upon any such waiver, such Event of Default shall cease to exist and
any Event of Default arising therefrom shall be deemed to have been cured for
every
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purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
its, his or her acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security on or after the Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
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Section 6.1. Certain Duties and Responsibilities.
The rights, immunities, 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 reason able 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 6.2. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default actually known to the Trustee within 90 days after it occurs unless such
default shall have been cured or waived; provided, that except in the case of a
default in the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Securities of any series or in the making
of any sinking fund payment payable with respect to Securities of any series,
the Trustee may withhold the notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that withholding the notice is
in the interest of Holders of Securities of that series; and provided, further,
that in the case of any default of the character specified in Section 5.1(d)
with respect to Securities 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
Securities of such series.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting in good faith upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
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(b) any request or direction of the Company shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the
Board of Directors shall 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 to it
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(f) 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, security or other paper or document, but the Trustee,
in its discretion, may make such inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(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;
(h) the Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Indenture;
(i) no permissive power or authority available to the Trustee shall be
construed to be a duty;
(j) the Trustee shall not be charged with knowledge of any Event of
Default unless either (i) a Responsible Officer of the Trustee assigned to
its Corporate Trust Office shall have actual knowledge thereof or (ii) the
Trustee shall have received notice thereof from the Company or a Holder; and
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(k) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent, Calculation Agent or Transfer Agent and Securities
Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article shall also be afforded such Paying Agent,
Authenticating Agent, Calculation Agent or Transfer Agent and Securities
Registrar.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
Section 6.6. 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 6.7. Compensation and Reimbursement.
(a) The Company agrees:
(i) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder in such amounts as the Trustee shall
agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
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(ii) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(iii) to indemnify the Trustee and its officers, directors, agents and
employees for, and to hold them harmless against, any loss, liability,
damage, claim or expense (including the reasonable compensation, expenses and
disbursements of its agents and counsel) incurred without negligence or bad
faith, arising out of or in connection with the acceptance or administration
of this trust or the performance of the Trustee's duties hereunder, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
(b) The Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by it hereunder for any amount owing it or
any predecessor Trustee pursuant to this Section, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
(c) Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(g) or 5.1(h) occurs, the expenses
(including the reasonable charges and expenses of its agents and counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal, state or foreign bankruptcy,
insolvency or other similar law.
(d) The obligations of the Company under this Section shall survive the
satisfaction and discharge of this Indenture, the defeasance of the Securities
and the earlier resignation or removal of the Trustee.
Section 6.8. 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. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or under any other indenture with respect to
securities issued or guaranteed by the Company.
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Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be the Trustee hereunder for
Securities of one or more other series. Each Trustee 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. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, 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 with respect to the Securities of any series 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. Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee
for the Securities of any series issued hereunder.
Section 6.10. 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 under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
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(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company, by a Board Resolution, may remove the
Trustee with respect to the Securities of all series issued hereunder or (y)
subject to Section 5.14, any such Holder may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to the Securities of all series issued
hereunder 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 Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Securities of such series and
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, subject to Section 5.14, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, 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
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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 Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (ii)
if the retiring Trustee is not retiring with respect to all Securities, 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 Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(iii) 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 Trustees 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
Securities 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, upon payment of its charges, duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities 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 rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities 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 Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
Section 6.13. 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 Securities), 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 6.14. Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue (in accordance with procedures acceptable to the Trustee) and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.7, and Securities 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 Securities 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, or of any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a
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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.
(b) 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 all or substantially all of
the corporate trust business of an Authenticating Agent, shall be the successor
an Authenticating Agent hereunder, 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.
(c) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. 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 eligible under the provisions of this Section, which shall be acceptable
to the Company, and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve. 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.
(d) The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
(e) If an appointment of an Authenticating Agent with respect to one or
more series is made pursuant to this Section, the Securities 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:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: THE CHASE MANHATTAN BANK,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) 15 days after each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities of each series as of such 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;
in each case to the extent such information is in the possession or control of
the Company and has not otherwise been received by the Trustee in its capacity
as Securities Registrar.
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Section 7.2. 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 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company, the Trustee or any
agent of either of them shall be held accountable by reason of any disclosure of
information as to the names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 7.3. Reports by Trustee.
(a) If required by Section 3.13(a) of the Trust Indenture Act, the Trustee
shall, within 60 days after each September 15 following the date of this
Indenture, deliver to the Holders a brief report, dated as of such September 15,
which complies with the provisions of Section 3.13(a) of the Trust Indenture
Act.
(b) The Trustee shall transmit to Holders such other 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.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange or system upon
which any Securities are listed or traded, with the Commission and with the
Company. The Company shall notify the Trustee when any Securities are listed or
traded on any securities exchange or system.
Section 7.4. Reports by Company.
(a) The Company shall furnish to the Holders and to prospective purchasers
of Securities that are not registered under the Securities Act, upon their
request, the information required to be furnished pursuant to Rule 144A(d)(4)
under the Securities Act.
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(b) The Company shall file with the Trustee and with 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 in the Trust Indenture; 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 VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a) if the Company shall consolidate with or merge into another Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance or transfer,
or that leases, the properties and assets of the Company substantially as an
entirety shall be a corporation validly existing under the laws of the United
States of America, any State thereof, the District of Columbia or Bermuda and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the
due and punctual payment of the principal of, any premium and interest on and
any Additional Amounts with respect to all the Securities of every series and
the performance or observance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, any such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have
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been complied with; and the Trustee may rely upon such Officers' Certificate
and Opinion of Counsel as conclusive evidence that such transaction complies
with this Section.
Section 8.2. Successor Substituted.
(a) Upon any consolidation of the Company with, or merger of the Company
into, any other Person, or any conveyance, transfer or lease by the Company of
its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease 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,
except in the case of a lease, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities.
(b) Such successor Person may cause to be executed, and may issue either
in its own name or in the name of the Company, any or all of the Securities
issuable hereunder that theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication pursuant to such
provisions and any Securities that such successor Person thereafter shall cause
to be executed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture.
(c) In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
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Section 9.1. 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:
(a) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(b) 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 Securities; or
(c) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, 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
(d) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(e) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided, that any
such addition, change or elimination (i) shall become effective only when
there is no Outstanding Security of any series created prior to the execution
of such supplemental indenture that is entitled to the benefit of such
provision or (ii) shall not apply to any Outstanding Securities; or
(f) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee for the purposes of securing the Securities; or
(g) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities 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
6.11(b); or
(h) to cure any ambiguity, to correct or supplement any provision herein
that may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture,
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provided, that such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or
(i) to comply with the requirements of the Commission in order to effect
or maintain qualification of this Indenture under the Trust Indenture Act.
Section 9.2. Supplemental Indentures With Consent of Holders.
(a) With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of such Holders delivered to the Company
and the Trustee, the Company, 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
Securities of such series under this Indenture; provided, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of each series affected thereby,
(i) change the Stated Maturity of the principal of, any premium or
interest on or Additional Amounts with respect to, any Security, or reduce
the principal amount thereof or the rate of interest of any Security or any
premium payable upon the redemption thereof or otherwise, or reduce the
principal amount of a Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2,
modify the calculation of the rate of interest on any Security or change the
date on which any Security may be redeemed, or change the Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon or any Additional Amounts with respect thereto are 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
with respect to any Securities, on or after the Redemption Date, or
(ii) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required to enter into any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with any provisions of
this Indenture or any default hereunder and their consequences provided for
in this Indenture, or
(iii) modify any of the provisions of this Section, Section 5.13 or
Section 10.11, 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 Security affected
thereby; provided, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the
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references to "the Trustee" and concomitant changes in this Section and
Section 10.11, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 9.1(g).
(b) A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities 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 Securities of any other series.
(c) 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 9.3. 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 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 that affects the Trustee's own rights, duties,
responsibilities or immunities under this Indenture or otherwise.
Section 9.4. 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 Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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Section 9.6. Reference in Securities to Supplemental Indentures.
Securities 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 Securities of any series so modified as to conform, in the
opinion of 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 Securities of such series.
ARTICLE X
Covenants
Section 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on and Additional Amounts with respect to the Securities of that
series in accordance with the terms of such Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency.
(a) The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities 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 Securities of that series and this Indenture
may be served. The Company initially appoints the Trustee, acting through its
Corporate Trust office, as its agent for such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain such 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.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes and may from time to time rescind
such
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designations; provided, 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 Securities 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 office or agency.
Section 10.3. Money for Security Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of, any premium or interest on or any Additional Amounts with respect
to any of the Securities 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, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee in writing of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to 10:00 a.m., New York City time, on each
due date of the principal of, any premium or interest on or any Additional
Amounts with respect to any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided in
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
(c) The Company will cause each Paying Agent for any series of Securities
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
Securities of that series) in the making of any payment in respect of the
Securities of that series, 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 Securities of that series.
(d) 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.
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(e) 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, any premium or
interest on or any Additional Amounts with respect to any Security of any series
and remaining unclaimed for two years after such principal, premium or interest
has, or such Additional Amounts have, become due and payable shall (unless
otherwise required by mandatory provision of the applicable escheat or abandoned
or unclaimed property law) be paid on Company Request to the Company, or (if
then held by the Company) shall (unless otherwise required by mandatory
provision of the applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, 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 10.4. Statement by Officers as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate (one of the signatories to which shall be the principal financial
officer, principal executive officer or principal accounting officer of the
Company) covering the preceding fiscal year, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any grace period or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
Section 10.5. Additional Amounts.
(a) All payments of principal of and premium, if any, interest and any
other amounts on or in respect of the Securities of any series shall be made
without withholding or deduction at source for, or on account of, any present or
future taxes, fees, duties, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in
which the Company is organized or resident for tax purposes (each, a "taxing
jurisdiction") or any political subdivision or taxing authority thereof or
therein, unless such taxes, fees, duties, assessments or governmental charges
are required to be withheld or deducted
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by (i) the laws (or any regulations or rulings promulgated thereunder) of a
taxing jurisdiction or any political subdivision or taxing authority thereof or
therein or (ii) an official position regarding the application, administration,
interpretation or enforcement of any such laws, regulations or rulings
(including a holding by a court of competent jurisdiction or by a taxing
authority in a taxing jurisdiction or any political subdivision thereof). If any
withholding or deduction at source is required, the Company shall, subject to
the limitations and exceptions set forth below, pay to the Holder of any such
Security such additional amounts as may be necessary so that every net payment
of principal, premium, if any, interest or any other amount made to such Holder,
after such withholding or deduction, shall not be less than the amount provided
for in such Security and this Indenture to be then due and payable (the
"Additional Amounts"); provided, that the Company shall not be required to make
payment of such Additional Amounts for or on account of:
(i) any tax, fee, duty, assessment or governmental charge of whatever
nature that would not have been imposed but for the fact that such Holder or
the beneficial owner of such Security: (A) was a resident, domiciliary or
national of, or engaged in business or maintained a permanent establishment
or was physically present in, the relevant taxing jurisdiction or any
political subdivision thereof or therein or otherwise had some connection
with the relevant taxing jurisdiction or any political subdivision thereof or
therein other than by reason of the mere ownership of, or receipt of payment
under, such Security; (B) presented such Security for payment in the relevant
taxing jurisdiction or any political subdivision thereof or therein, unless
such Security could not have been presented for payment elsewhere; or (c)
presented such Security more than 30 days after the date on which the payment
in respect of such Security first became due and payable except to the extent
that the Holder or beneficial owner would have been entitled to such
Additional Amounts if it had presented such Security for payment on any day
within such period of 30 days;
(ii) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, fee, duty, assessment or other governmental charge; or
(iii) any tax, fee, duty, assessment or other governmental charge that is
imposed or withheld by reason of the failure by the Holder or the beneficial
owner of such Security to comply, within 90 days, with any reasonable request
by the Company addressed to the Holder or such beneficial owner (A) to
provide information concerning the nationality, residence or identity of the
Holder or such beneficial owner or (B) to make any declaration or other
similar claim or satisfy any information or reporting requirement, which, in
the case of (A) or (B), is required or imposed by statute, treaty, regulation
or administrative practice of the relevant taxing jurisdiction or any
political subdivision thereof or therein as a precondition to exemption from
all or part of such tax, fee, duty, assessment or other governmental charge;
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nor shall Additional Amounts be paid with respect to any payment of the
principal of, or premium, if any, interest or any other amounts on, any such
Security to any Holder where the beneficial owner of such Security is a
fiduciary or partnership to the extent such payment would be required by the
laws of the relevant taxing jurisdiction (or any political subdivision or
relevant taxing authority thereof or therein) to be included in the income for
tax purposes of a beneficiary with respect to such fiduciary or partner of such
partnership that would not have been entitled to such Additional Amounts had it
been the Holder of the Security.
(b) Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium, interest or any other amounts on or
in respect of any Security of any series or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of
such series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional Amounts
(if applicable) in any provision hereof shall not be construed as excluding the
payment of Additional Amounts in those provisions hereof where such express
mention is not made.
(c) Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, at least 10 days prior to the first
Interest Payment Date with respect to a series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below- mentioned Officer's Certificate,
the Company shall furnish to the Trustee and the principal Paying Agent or
Paying Agents, if other than the Trustee, an Officer's Certificate instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and premium, if any, interest or any other amounts on the
Securities of such series shall be made to Holders of Securities of such series
without withholding for or on account of any tax, fee, duty, assessment or other
governmental charge described in this Section. If any such withholding shall be
required, then such Officer's Certificate shall specify by jurisdiction in which
Holders of Securities are resident for tax purposes the amount, if any, required
to be withheld on such payments to such Holders of Securities, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by this Section. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officer's Certificate furnished pursuant to this Section.
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Section 10.6. Existence.
Subject to Article VIII and Section 10.9, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
and its Subsidiaries' existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.7. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property thereof, and (2) all
material lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any of its respective
Subsidiaries; provided, however, that the Company shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which adequate reserves have been established
to the extent required by generally accepted accounting principles.
Section 10.8. Limitation on Liens on Stock of Significant Subsidiaries.
So long as any Securities are Outstanding, the Company will not, nor will
it permit any Significant Subsidiary at any time, directly or indirectly, to
create, assume, incur, or otherwise permit to exist any Debt secured by any Lien
upon any shares of capital stock of any Significant Subsidiary (whether such
shares of stock are now owned or hereafter acquired) without effectively
providing concurrently that the Securities (and, if the Company so elects, any
other Debt of the Company that ranks equally with the Securities) shall be
secured equally and ratably with or prior to such Debt for at least the time
period such other Debt is so secured; provided, that this Section shall not
apply, with respect to the Securities for any series, to any Debt existing on
the date of the first issuance of Securities of such series that is so secured
and any renewals, extensions or refundings of such Debt.
Section 10.9. Limitation on Disposition of Stock of Significant Subsidiaries.
Subject to the provisions of Article VIII, so long as any Securities are
outstanding, the Company will not sell, transfer or otherwise dispose of any
shares of capital stock of any Significant Subsidiary, and will not permit any
Significant Subsidiary to sell, transfer or otherwise dispose of any shares of
capital stock of any other Significant
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Subsidiary. Notwithstanding the foregoing, (i) the Company may merge or
consolidate any Significant Subsidiary into or with another direct or indirect
Subsidiary of the Company and (ii) the Company may, subject to the provisions of
Article VIII, sell, transfer or otherwise dispose of the entire capital stock of
any Significant Subsidiary at one time for consideration consisting of cash or
other property which is at least equal to the fair market value thereof as
determined by the Board of Directors pursuant to a Board Resolution adopted in
good faith.
Section 10.10. Original Issue Discount.
For each year during which any Discount Securities are Outstanding, the
Company shall furnish to each Paying Agent in a timely fashion such information
as may be reasonably requested by each Paying Agent in order that each Paying
Agent may prepare the information which it is required to report for such year
on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall include the
amount of original issue discount includible in income for each $25 of principal
amount at Stated Maturity of outstanding Securities during such year.
Section 10.11. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any covenant in
Section 10.8 or 10.9 or provided pursuant to Section 3.1 or Section 9.1(a) or
(c) for the benefit of the Holders of such series if before or after the time
for such compliance the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant, but no such waiver shall extend to or affect such
covenant, except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company in respect of any such covenant
shall remain in full force and effect.
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ARTICLE XI
Redemption of Securities
Section 11.1. Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for such Securities) in accordance with
this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 3.1
for such Securities. In case of any redemption at the election of the Company,
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 and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities (a)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (b) pursuant to an
election of the Company that is subject to a condition specified in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to be Redeemed.
(a) If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities 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 a portion of the principal amount of any Security of such series,
provided, that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
(b) The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities 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 Securities shall relate, in the case of
any Security redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Security
that has been or is to be redeemed.
(c) The provisions of paragraphs (a) and (b) of this Section shall not
apply with respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
Section 11.4. Notice of Redemption.
(a) Notice of redemption shall be given not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed.
(b) With respect to Securities of each series to be redeemed, each notice
of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the estimate
of the Redemption Price, as calculated by the Company, together with a
statement that it is an estimate and that the actual Redemption Price will be
calculated on the day provided by the terms of such Securities (and if an
estimate is provided, a further notice shall be sent of the actual Redemption
Price on the date that such Redemption Price is calculated);
(iii) if less than all Outstanding Securities of such series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed and, if less
than all the Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular Security
to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon
shall cease to accrue on and after said date;
(v) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if such is the case; and
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(vii) such other provisions as may be required in respect of the terms of
such Securities.
(c) Unless otherwise specified with respect to any Securities in
accordance with Section 3.1, with respect to any redemption of Securities at the
election of the Company, unless, upon the giving of notice of such redemption,
Defeasance shall have been effected with respect to such Securities pursuant to
Section 13.2, such notice may state that such redemption shall be conditional
upon the receipt by the Trustee or the Paying Agent for such Securities, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of, any premium and interest on and Additional Amounts with respect to
such Securities and that if such money shall not have been so received such
notice shall be of no force or effect and the Company shall not be required to
redeem such Securities. In the event such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be given, in the same
manner in which the notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the Trustee or
Paying Agent for the Securities otherwise to have been redeemed shall promptly
return to the Holders thereof any of such Securities that had been surrendered
for payment upon such redemption.
(d) Notice of redemption of Securities 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, subject to paragraph (c)
of this Section, and shall be irrevocable. The notice if mailed in the manner
provided above shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. In any case, a failure to give such
notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and accrued interest on, all the Securities (or portions thereof) that
are to be redeemed on that date.
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Section 11.6. Payment of Securities Called for Redemption.
(a) Except as provided in Section 11.4(c), after notice of redemption has
been given, the Securities to be redeemed shall become due and payable on the
Redemption Date at the place or places stated in such notice at the Redemption
Price, together with accrued interest to the Redemption Date. Upon surrender of
such Securities at a Place of Payment specified in such notice, such Securities
shall be paid and redeemed by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.8.
(b) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and any premium on and
Additional Amounts with respect to such Security shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 11.7. Securities Redeemed In Part.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms.
ARTICLE XII
Sinking Funds
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities. The minimum amount of any
sinking fund payment provided for by the terms of any Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any sinking
fund payment in excess of such minimum amount that is permitted to be made by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any sinking fund
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payment may be subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of such Securities.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 60 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired by the Company, except
Securities of such series that have been redeemed through the application of
mandatory or optional sinking fund payments pursuant to the terms of the
Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value; provided, that the Securities to be so credited have not
been previously so credited. The Securities to be so credited shall be received
and credited for such purpose by the Trustee at the Redemption Price for such
Securities, as specified in the Securities so to be redeemed, for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund.
(a) Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and stating the basis for such
credit and that such Securities have not been previously so credited, and will
also deliver to the Trustee any Securities to be so delivered. Such Officers'
Certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the succeeding sinking fund payment date. In the case of the failure
of the Company to deliver such Officers' Certificate (or, as required by this
Indenture, the Securities specified in such Officers' Certificate) by the due
date therefor, the sinking fund payment due on the succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit securities as provided in Section 12.2
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and without the right to make the optional sinking fund payment with respect to
such series at such time.
(b) Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the Redemption Price specified in such Securities with respect
to the sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or, if the Company is acting as its own Paying Agent, segregated and
held in trust by the Company as provided in Section 10.3) for such series and
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 12.3. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
Trustee (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 10.3) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities of
such series at Maturity. The Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.3 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 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 11.6. On or before each sinking fund
payment date, the Company shall pay to the Trustee (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
10.3) in cash a sum in the currency in which Securities of such series are
payable (except as provided pursuant to Section 3.1) equal to the principal and
any premium and interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 12.3 and any Additional Amounts with respect thereto.
(c) Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company, if the
Company is then acting as its own Paying Agent)
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shall redeem such Securities if cash sufficient for that purpose shall be
deposited with the Trustee (or segregated by the Company) for that purpose in
accordance with the terms of this Article. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of the Securities of such series; provided, that in case such
default or Event of Default shall have been cured or waived herein, such moneys
shall thereafter be applied on the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section 12.3.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.2 or
Section 13.3 applied to any Securities or any series of Securities designated
pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2 or
13.3, in accordance with any applicable requirements provided pursuant to
Section 3.1 and upon compliance with the conditions set forth below in this
Article.
Section 13.2. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 13.4 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 such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities 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: (a) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 13.4 and as more fully
set forth in such Section, payments in respect of the principal of, any premium
and interest on and any Additional Amounts with respect to such Securities when
payments are due, (b) the Company's obligations with respect to such Securities
under Sections 3.6, 3.7, 10.2 and 10.3, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (d) the provisions of this Article.
Subject
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to compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior exercise
of its option (if any) to have Section 13.3 applied to such Securities.
Section 13.3. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (a)
the Company shall be released from its obligations under Sections 8.1, 10.8 and
10.9 and any covenants provided pursuant to Section 3.1(o), 9.1(a), 9.1(c) or
9.1(f) for the benefit of the Holders of such Securities and (2) the occurrence
of any event specified in Sections 5.1(d) (with respect to any of Sections 8.1,
10.8 and 10.9 and any covenants provided pursuant to Sections 3.1(o), 9.1(a),
9.1(c) or 9.1(f)), Section 5.1(e), (f) and (i) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 13.4 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
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 Section, 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 such
Securities shall be unaffected thereby. Notwithstanding anything herein to the
contrary, no Covenant Defeasance shall release any successor Person referred to
in Article VIII from its obligations to assume the obligations of the Company
under Section 6.7 as a condition to the consummation of any transaction
contemplated by Section 8.1.
Section 13.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.2
or Section 13.3 to any Securities or any series of Securities, as the case may
be:
(a) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 6.9 and agrees to comply with the provisions of this
Article 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 such Securities, (i) money in an
amount or (ii) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, 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
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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,
any premium and interest on and any Additional Amounts with respect to such
Securities on the respective Stated Maturities or Redemption Dates in
accordance with the terms of this Indenture and such Securities.
(b) In the event of an election to have Section 13.2 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (i) or
(ii) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge were not
to occur.
(c) In the event of an election to have Section 13.3 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 5.1(g) and (h), 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).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
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(g) 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 unless such trust shall be registered
under such Act or exempt from registration thereunder.
(h) If the money and/or Government Obligations deposited in trust pursuant
to this Section are sufficient to pay and discharge such Securities on a
Redemption Date, then at or prior to the time of such deposit, either notice
of such redemption shall have been given in accordance with Section 11.4 or
the Company shall have irrevocably instructed the Trustee to give such notice
of redemption and arrangements satisfactory to the Trustee for the giving of
such notice by the Trustee in the name, and at the expense, of the Company
shall have been made.
(i) 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.
Section 13.5. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
(a) Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.4 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities 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 such
Securities, of all sums due and to become due thereon in respect of principal
and any premium, interest and Additional Amounts, but money so held in trust
need not be segregated from other funds except to the extent required by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
(c) Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon a Company Request any
money or Government Obligations held by it as provided in Section 13.4 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered
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to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case may
be, with respect to such Securities.
Section 13.6. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.2 or 13.3 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 13.5 with respect to such Securities
in accordance with this Article; provided, that if the Company makes any payment
of principal of, any premium or interest on or any Additional Amounts with
respect to any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
Section 13.7. Qualifying Trustee.
Any trustee appointed pursuant to Section 13.4 for the purpose of holding
trust funds deposited pursuant to that Section shall be appointed under an
agreement in form reasonably acceptable to the Trustee and shall provide to the
Trustee a certificate of such trustee, upon which certificate the Trustee shall
be entitled to conclusively rely, that all conditions precedent provided for
herein to the related Defeasance or Covenant Defeasance have been complied with.
In no event shall the Trustee be liable for any acts or omissions of said
trustee.
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.
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In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed and attested, all as of the day and year first above written.
MUTUAL RISK MANAGEMENT LTD., as Issuer
By __________________________________
Name:
Title:
Attest:
______________________________________
THE CHASE MANHATTAN BANK
By _________________________________
Name:
Title:
Attest:
______________________________________
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State of New York )
) ss.:
County of New York )
On the ____ day of ___________, ____, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he is ______________________ of Mutual Risk Management Ltd., one of the
corporations described in and which executed the foregoing instrument, and that
he signed his name thereto by like authority.
_____________________________
State of New York )
) ss.:
County of New York )
On the ____ day of ___________, ____, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ____________________ of The Chase Manhattan Bank, one
of the corporations described in and which executed the foregoing instrument;
that 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 he signed his name thereto by
like authority.
_____________________________
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