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As Filed with the Securities and Exchange Commission on May 11, 1999
Registration No. 333-70761
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
PRE-EFFECTIVE
AMENDMENT NO. 2
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
OHIO CASUALTY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
OHIO
(State or Other Jurisdiction of Incorporation or 0rganization)
31-0783294
(I.R.S. Employer Identification Number)
--------------------------
136 NORTH THIRD STREET
HAMILTON, OHIO 45025
(513) 867-3000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Office)
BARRY S. PORTER
CHIEF FINANCIAL OFFICER
OHIO CASUALTY CORPORATION
136 NORTH THIRD STREET
HAMILTON, OHIO 45025
(513) 867-3000
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, Of Agent for Service)
--------------------------
COPIES TO:
ROGER E. LAUTZENHISER, ESQ.
VORYS, SATER, SEYMOUR AND PEASE LLP
52 EAST GAY STREET, P.O. BOX 1008
COLUMBUS, OHIO 43216-1008
(614) 464-6291
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
----
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. X
----
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering.
----
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
----
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
----
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED MAY 11, 1999
PROSPECTUS
$300,000,000
DEBT SECURITIES
OHIO CASUALTY CORPORATION
136 North Third Street
Hamilton, Ohio 45025
(513) 867-3000
OHIO CASUALTY CORPORATION may periodically sell in one or more
offerings:
. its unsecured senior debt securities, consisting of debentures,
notes or other indebtedness, or
. its unsecured subordinated debt securities, consisting of
debentures, notes or other indebtedness.
This prospectus describes the securities that we may offer. We will
provide the specific terms of the securities that we may offer in supplements
to this prospectus. If we use an underwriter to sell the securities, we will
describe our arrangement with that underwriter in a prospectus supplement.
You should read this prospectus and the accompanying prospectus
supplement carefully before you invest.
The common shares of Ohio Casualty Corporation are traded on The
Nasdaq National Market under the symbol "OCAS".
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
YOU SHOULD READ CAREFULLY THE "RISK FACTORS" SECTION OF THIS
PROSPECTUS BEGINNING ON PAGE 6, WHERE WE DESCRIBE SPECIFIC RISKS ASSOCIATED
WITH THESE SECURITIES.
-----------------------
, 1999.
The following legend will run sideways down the front cover of the
prospectus: THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT A
SOLICITATION OF OFFERS TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
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TABLE OF CONTENTS
Page
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RISK FACTORS............................................................. 6
If Ohio Casualty's subsidiaries are unable to pay dividends to Ohio
Casualty, then Ohio Casualty may be unable to meet its financial
obligations under the debt securities................................. 6
THE FOLLOWING FACTORS COULD ADVERSELY AFFECT THE ABILITY OF
OHIO CASUALTY'S INSURANCE SUBSIDIARIES TO PAY DIVIDENDS TO
OHIO CASUALTY:
Legal Restrictions on the Ability to Pay Dividends............... 6
Unpredictable Events............................................. 6
Inadequate Reinsurance........................................... 7
Catastrophe Losses............................................... 8
Governmental Regulation of the Insurance Industry................ 8
Inadequate Loss Reserves......................................... 9
Inadequate Loss Reserves for Environmental and Asbestos Losses... 10
Intense Competition.............................................. 10
Downgrade by a Rating Agency..................................... 11
Inability to Integrate Great American Insurance Company.......... 12
If the year 2000 problem causes an interruption or failure in the
normal business operations of Ohio Casualty and its subsidiaries,
then Ohio Casualty may be unable to meet its financial obligations
under the debt securities............................................. 12
OHIO CASUALTY CORPORATION AND THE OHIO CASUALTY GROUP.................... 14
USE OF PROCEEDS.......................................................... 15
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES.......................... 16
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DESCRIPTION OF THE DEBT SECURITIES....................................... 16
Senior Debt Indenture and Subordinated Debt Indenture................. 16
Senior and Subordinated Debt Securities............................... 17
Prospectus Supplements................................................ 18
Global Debt Securities................................................ 20
Covenants Applicable to the Debt Securities........................... 23
Limitations on Liens............................................. 23
Consolidation, Merger and Sale of Assets......................... 23
Restrictions on Dispositions..................................... 24
Events of Default..................................................... 24
Discharge, Defeasance and Covenant Defeasance......................... 26
Modification of the Indentures........................................ 27
Subordination under the Subordinated Debt Indenture................... 28
Governing Law......................................................... 30
The Indenture Trustee................................................. 30
PLAN OF DISTRIBUTION..................................................... 30
Sale through Underwriters........................................ 30
Sale through Dealers............................................. 30
Direct Sales and Sales through Agents............................ 31
Delayed Delivery Contracts....................................... 31
Indemnification.................................................. 31
Underwriting Discounts and Commissions, Listing of Debt
Securities and Transactions with Ohio Casualty................... 31
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LEGAL MATTERS............................................................ 31
EXPERTS.................................................................. 32
MATTERS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITIES ACT OF 1974...... 32
WHERE YOU CAN FIND MORE INFORMATION...................................... 33
FORWARD LOOKING STATEMENTS............................................... 34
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RISK FACTORS
IF OHIO CASUALTY'S SUBSIDIARIES ARE UNABLE TO PAY DIVIDENDS TO OHIO CASUALTY,
THEN OHIO CASUALTY MAY BE UNABLE TO MEET ITS FINANCIAL OBLIGATIONS UNDER THE
DEBT SECURITIES.
Ohio Casualty engages in insurance and insurance premium finance
through its direct and indirect subsidiaries. Accordingly, Ohio Casualty
relies on dividends from those subsidiaries to meet its financial obligations,
including its financial obligation to pay principal, any premium and interest
on the debt securities. The inability of Ohio Casualty's subsidiaries to pay
dividends to Ohio Casualty could adversely affect Ohio Casualty's ability to
meet its obligations under the debt securities.
THE FOLLOWING FACTORS COULD ADVERSELY AFFECT THE ABILITY OF OHIO
CASUALTY'S INSURANCE SUBSIDIARIES TO PAY DIVIDENDS TO OHIO CASUALTY:
LEGAL RESTRICTIONS ON THE ABILITY TO PAY DIVIDENDS
The principal insurance subsidiaries of Ohio Casualty are domiciled
in the States of Ohio and Indiana. Ohio and Indiana laws governing the
payment of dividends by domestic insurance companies provide that an insurer
domiciled in either of these states must obtain the prior approval of the
state's insurance department for the declaration or payment of any dividend
that, together with other distributions made within the preceding twelve
months, exceeds the greater of 10% of the insurer's surplus or the insurer's
net income for the twelve-month period ending the preceding December 31st, in
each case determined in accordance with statutory accounting practices. In
addition, Ohio and Indiana laws require that any dividend paid from any
source other than earned surplus must be pre-approved by the state's
insurance department. Earned surplus means an insurer's adjusted unassigned
funds as determined in accordance with statutory accounting practice.
These types of limitations could adversely affect the ability of
an insurance subsidiary to pay dividends to Ohio Casualty and the resulting
ability of Ohio Casualty to meet its financial obligations on the debt
securities.
Dividend payments to Ohio Casualty from its insurance subsidiaries are
limited to $112.1 million in 1999 without prior approval of the Ohio and
Indiana Insurance Departments.
UNPREDICTABLE EVENTS
The operating results and financial condition of Ohio Casualty's
insurance subsidiaries historically have been and will continue to be subject
to significant fluctuation and uncertainty. If an unpredictable event
adversely affects the operating results and financial condition of an
insurance subsidiary, then that subsidiary may be unable financially to pay
dividends to Ohio Casualty. In that event, Ohio Casualty could become unable
to meet its financial obligations under the debt securities.
Unpredictable events that can adversely affect the operating results
and financial condition of an insurance subsidiary include:
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. catastrophes;
. changes in reserves resulting from general policyholder
claims as different types of claims arise and judicial
interpretations relating to the scope of liability for
those claims develop;
. fluctuations in interest rates and other changes in the
investment environment, which affect the value of and
returns on the subsidiary's investment portfolio;
. inflationary pressures that affect the size of property
and casualty losses; and
. fluctuations in the demand for property and casualty
insurance products.
INADEQUATE REINSURANCE
Ohio Casualty's insurance subsidiaries use reinsurance to help manage
their exposure to property and casualty risks. Reinsurance is a contract by
which one insurer, the reinsurer, agrees to cover a portion of the losses
incurred by a second insurer, in the event a claim is made under a policy
issued by the second insurer. If the reinsurance obtained by an Ohio Casualty
insurance subsidiary proves inadequate, then the operating results and
financial condition of that subsidiary will be adversely affected, as well as
the resulting ability of that subsidiary to pay dividends to Ohio Casualty.
In that event, Ohio Casualty could become unable to meet its financial
obligations under the debt securities.
The availability and cost of reinsurance are subject to prevailing
market conditions which can affect the business volume and profitability of
Ohio Casualty's insurance subsidiaries. Although the reinsurer is liable to
the subsidiaries according to the terms of its reinsurance policy, the
subsidiaries remain primarily liable as the direct insurer on all risks
reinsured. As a result, reinsurance does not eliminate the obligation of
the subsidiaries to pay all claims and each subsidiary is subject to the
risk that one or more of its reinsurers will be unable to honor its
obligations.
Ohio Casualty believes that the financial condition of its
subsidiaries' reinsurers is generally sound, based upon periodic reviews of
the financial statements and reputations of those reinsurers. Nevertheless,
the reinsurers may become financially unsound by the time that they are
called upon to pay amounts due, which may not occur for many years. In
addition, reinsurance may prove inadequate to protect against losses or may
become unavailable in the future at commercially reasonable rates.
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CATASTROPHE LOSSES
Ohio Casualty's property and casualty insurance subsidiaries have
experienced, and can be expected in the future to experience, catastrophe
losses. It is possible that a catastrophic event could have a material
adverse effect on the operating results and financial condition of an
insurance subsidiary, thereby limiting the ability of that subsidiary to pay
dividends to Ohio Casualty. In that event, Ohio Casualty could become unable
to meet its financial obligations under the debt securities.
Various events can cause catastrophes, including hurricanes,
windstorms, earthquakes, hail, explosions, severe winter weather and fires.
The incidence and severity of these catastrophes are inherently unpredictable.
For example, in 1997, Ohio Casualty's insurance subsidiaries incurred
catastrophe losses that were not covered by reinsurance of $21.4 million, as
a result of 25 catastrophes. Similarly, in 1998, Ohio Casualty's insurance
subsidiaries incurred catastrophe losses that were not covered by reinsurance
of $44.6 million, as a result of 37 catastrophes. Although catastrophes can
cause losses in a variety of property and casualty lines, most of the
catastrophe-related claims of Ohio Casualty's insurance subsidiaries have
related to homeowner's and commercial property coverages.
The insurance subsidiaries of Ohio Casualty generally seek to reduce
their exposure to catastrophe losses through underwriting and the purchase of
catastrophe reinsurance. Nevertheless, reinsurance may prove inadequate as
discussed above. Furthermore, a number of states from time to time have passed
legislation that has had the effect of limiting the ability of insurers to
manage risk, such as legislation prohibiting an insurer from withdrawing
from catastrophe-prone areas. Governmental regulation of this type is
discussed below.
GOVERNMENTAL REGULATION OF THE INSURANCE INDUSTRY
Ohio Casualty's insurance subsidiaries are subject to extensive
regulation and supervision in the jurisdictions in which they do business.
Regulation is generally designed to protect the interests of policyholders,
as opposed to stockholders or non-policyholder creditors. This type of
regulation could adversely impact the operations of the insurance
subsidiaries, their financial condition and their resulting ability to pay
dividends to Ohio Casualty. As a result, Ohio Casualty could become unable
to meet its financial obligations on the debt securities.
An example of governmental regulation that has adversely impacted the
operations of Ohio Casualty's insurance subsidiaries is the adoption in
several states of legislation and other regulatory action intended to reduce
the premiums paid for automobile insurance by residents of those states. For
example, in 1988 the State of California adopted Proposition 103 which, as
interpreted by the California Supreme Court, required the rollback of
automobile insurance premiums for California policyholders in 1989 while
allowing a "fair" return for insurance companies. During the fourth quarter
of 1994, the State of California assessed the insurance subsidiaries of Ohio
Casualty $59.9 million for Proposition 103 liability. As a result of a
challenge by those subsidiaries, a California Administrative Judge issued a
proposed ruling with a Proposition 103 liability of $24.4 million plus interest
in 1998. As of December 31, 1998, the
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insurance subsidiaries of Ohio Casualty maintained a contingent liability on
their books of $48 million for Proposition 103 liability while continuing
to contest their liability under Proposition 103.
Other forms of regulation that could adversely affect Ohio Casualty's
insurance subsidiaries include regulation of their statutory surplus and
risk-based capital requirements. Maintaining appropriate levels of statutory
surplus, as measured by statutory accounting practices and procedures, is
considered important by state insurance regulatory authorities and the private
agencies that rate insurers' claims-paying abilities and financial strength.
The failure of an insurance subsidiary to maintain levels of statutory surplus
which are sufficient for the amount of insurance written by it could result in
increased regulatory scrutiny, action by state regulatory authorities or a
downgrade by rating agencies. Similarly, the National Association of
Insurance Commissioners has adopted a system of assessing minimum capital
adequacy, that is applicable to Ohio Casualty's insurance subsidiaries. This
system, known as risk-based capital, is used to identify companies that merit
further regulatory action by analyzing the adequacy of the insurer's surplus
in relation to statutory requirements.
Because state and federal legislatures remain concerned about the
availability and affordability of property and casualty insurance, the
insurance subsidiaries of Ohio Casualty expect that they will continue to
face efforts similar to those set forth above to regulate their manner of
operation. Any one of these efforts could adversely affect the operating
results and financial condition of the insurance subsidiaries and their
resulting ability to pay dividends to Ohio Casualty.
INADEQUATE LOSS RESERVES
Ohio Casualty's insurance subsidiaries maintain property and casualty
loss reserves to cover their estimated ultimate liability for losses and loss
adjustment expenses with respect to reported and unreported claims incurred
as of the end of each accounting period. If the loss reserves of an insurance
subsidiary prove inadequate, then the insurance subsidiary's operating results
and financial condition will be adversely affected, as well as the resulting
ability of the insurance subsidiary to pay dividends to Ohio Casualty. In
that event, Ohio Casualty could become unable to meet its financial
obligations under the debt securities.
Reserves do not represent an exact calculation of liability. Instead,
reserves represent estimates, generally involving actuarial projections at a
given time, of what the subsidiaries expect the ultimate settlement and
administration of claims will cost. Estimates are based on assessments of
known facts and circumstances, estimates of future trends in claims severity
and frequency, judicial theories of liability and other factors. These
variables are affected by both internal and external events, such as changes
in claims handling procedures, economic inflation, judicial trends and
legislative changes. Many of these items are not directly quantifiable,
particularly on a prospective basis. Additionally, significant reporting
lags may exist between the occurrence of an insured event and the time it
is actually reported. Ohio Casualty's insurance subsidiaries continually
refine their reserve estimates in a regular ongoing process as experience
develops and further claims are reported and settled.
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The insurance subsidiaries of Ohio Casualty reflect adjustments
to their reserves in the results of the periods in which their estimates
are changed. These adjustments can result in an increase in liabilities
as reflected on the balance sheet. Because establishment of reserves
is an inherently uncertain process involving estimates of future losses,
currently established reserves may prove inadequate in light of
subsequent actual experience.
INADEQUATE LOSS RESERVES FOR ENVIRONMENTAL AND ASBESTOS LOSSES
Ohio Casualty's insurance subsidiaries maintain loss reserves to
cover their estimated ultimate liability for environmental and asbestos
losses. If these loss reserves prove inadequate, then the insurance
subsidiary's operating results and financial condition will be adversely
affected, as well as the resulting ability of the insurance subsidiary to
pay dividends to Ohio Casualty. In that event, Ohio Casualty could become
unable to meet its financial obligations under the debt securities.
It is difficult to estimate the loss reserves for environmental and
asbestos-related claims due to the unpredictability of court decisions,
plaintiffs' expanded theories of liability, the risks inherent in major
litigation and other uncertainties. Conventional actuarial techniques are
not used to estimate these reserves.
The reserves carried for environmental and asbestos claims
constitute the best estimate by the insurance subsidiaries of Ohio
Casualty of ultimate claims and claim adjustment expenses based upon known
facts and current law. However, the conditions surrounding the final
resolution of these claims continue to change. Currently, the insurance
subsidiaries of Ohio Casualty cannot predict changes in the legal and
legislative environment and their impact on the future development of
asbestos and environmental claims. Such development will be affected by
future court decisions and changes in legislation. Because of these future
unknowns, additional liabilities may arise for amounts in excess of current
reserves. These additional liabilities could result in liability exceeding
reserves by an amount that would be material to the operating results and
financial condition of Ohio Casualty's insurance subsidiaries.
INTENSE COMPETITION
The property and casualty insurance business is intensely competitive.
Ohio Casualty believes that the property and casualty insurance business will
remain intensely competitive with little prospect for periods of dramatically
improved pricing in the foreseeable future. Demand for low-cost, high
quality service, has created difficult conditions in the domestic property
and casualty market, as is evidenced by a leveling or reduction in premium
rates in the lines of business in which the insurance subsidiaries of Ohio
Casualty compete. The inability of an insurance subsidiary of Ohio Casualty
to compete successfully in the property and casualty business could adversely
affect its operating results and financial condition and its resulting ability
to pay dividends to Ohio Casualty. As a result, Ohio Casualty could become
unable to meet its financial obligations under the debt securities.
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The insurance subsidiaries of Ohio Casualty compete with domestic and
foreign insurers, many of which have greater financial resources than the
insurance subsidiaries of Ohio Casualty. Competition involves many factors,
including the following:
. the perceived overall financial strength of the insurer;
. pricing and other terms and conditions of products;
. levels of customer service, including the speed with which
the insurer pays claims; and
. experience in the business.
Ohio Casualty's insurance subsidiaries also compete with other
companies that use exclusive agents or salaried employees to sell their
insurance products. Because these companies generally do not pay commissions,
they may be able to obtain business at a lower cost than the insurance
subsidiaries of Ohio Casualty, which sell their products primarily through
independent agents and brokers who typically represent more than one
insurance company.
DOWNGRADE BY A RATING AGENCY
Claims-paying and financial strength ratings have become an
increasingly important factor in establishing the competitive position of
insurance companies. Each of the rating agencies reviews its ratings
periodically. A significant downgrade in the ratings of an Ohio Casualty
insurance subsidiary by a recognized rating agency could result in a
substantial loss of business for that subsidiary as policyholders move
to other companies with higher claims-paying and financial strength ratings.
Such a loss of business could have a material adverse effect on the results
of operations and financial condition of that subsidiary and the resulting
ability of that subsidiary to pay dividends to Ohio Casualty. In that event,
Ohio Casualty could become unable to meet its financial obligations under the
debt securities.
As of December 31, 1998, A.M. Best Company and Standard & Poor's
each gave the insurance subsidiaries of Ohio Casualty a combined rating of A+.
Moody's gave each of these insurance subsidiaries a combined rating of A2
as of the same date. These ratings are not in any way a measure of
protection offered to investors of the debt securities offered by this
prospectus and potential investors should not rely on these ratings with
respect to making an investment in the debt securities.
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INABILITY TO INTEGRATE GREAT AMERICAN INSURANCE COMPANY
In December, 1998, Ohio Casualty acquired substantially all of the
assets of the commercial lines division of the Great American Insurance
Company and its affiliates. The acquisition was the largest single
acquisition completed by Ohio Casualty in its history. The acquisition
requires the integration of the acquired commercial lines business into the
commercial lines operations of the insurance subsidiaries of Ohio Casualty.
The successful combination of the two operations requires that the insurance
subsidiaries:
. develop and maintain good business relationships with the
independent insurance agents who wrote the commercial lines
insurance policies for Great American;
. achieve substantial savings in the operating expenses for
the combined operations while maintaining a high level of
customer service; and
. retain the customers of the acquired business.
The inability of the insurance subsidiaries of Ohio Casualty to
successfully integrate the acquired business operations could adversely
affect their financial condition and their resulting ability to pay dividends
to Ohio Casualty. In that event, Ohio Casualty could become unable to meet
its financial obligations under the debt securities.
IF THE YEAR 2000 PROBLEM CAUSES AN INTERRUPTION OR FAILURE IN THE NORMAL
BUSINESS OPERATIONS OF OHIO CASUALTY AND ITS SUBSIDIARIES, THEN OHIO CASUALTY
MAY BE UNABLE TO MEET ITS FINANCIAL OBLIGATIONS UNDER THE DEBT SECURITIES.
The year 2000 problem exists because many computer programs use only
the last two digits to refer to a year. Such computer programs do not
distinguish a year that begins with "20" from a year that begins with "19".
If not corrected, these computer programs could fail or create erroneous
results.
The year 2000 problem could adversely affect Ohio Casualty through:
. the failure of the information technology or non-information
technology systems of Ohio Casualty and its subsidiaries; or
. the failure of the information technology or non-information
technology systems of third-party providers of Ohio Casualty
and its subsidiaries, including their agents, suppliers,
vendors and customers.
The failure to correct a material year 2000 problem could result in a
material interruption in, or a failure of, the normal business operations of
Ohio Casualty and its subsidiaries, including a disruption or delay in
premium or claim processing or a disruption or delay in services to customers.
This type of interruption or failure could have a material adverse effect
upon the financial position, results of operations or liquidity of Ohio
Casualty and its subsidiaries, resulting
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in the potential inability of Ohio Casualty to meet its financial obligations
under the debt securities.
The year 2000 issue is also a concern from an underwriting standpoint
regarding the extent of liability for coverage under various general
liability, property and directors' and officers' liability products and
policies issued by Ohio Casualty's insurance subsidiaries. As of December 31,
1998, Ohio Casualty and its insurance subsidiaries were managing this concern
by directly providing educational information on the year 2000 issue to
policyholders and agents; by adding clarification and exclusionary language
to some insurance policies and by adjusting underwriting practices.
Nonetheless, the courts could find that coverage exists for year 2000 related
liability under some of the types of policies written by Ohio Casualty's
insurance subsidiaries.
In a worst-case scenario, Ohio Casualty and its subsidiaries could
experience disruption or delay in premium and claim processing, disruption
in service to customers, litigation of year 2000 related claims, adverse
effects on its ability to integrate the acquired business from Great
American and loss of electrical, water and other utility services which could
result in a disruption in services. Ohio Casualty and its subsidiaries
cannot estimate the potential liability and lost revenue that they
could incur in these circumstances.
As of March 31, 1999, Ohio Casualty had spent approximately $2.4
million in its efforts to address the year 2000 issue.
As set forth in the Year 2000 Information and Readiness Disclosure
Act, the statements contained in this section do not constitute year 2000
statements for purposes of actions brought under the securities laws.
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OHIO CASUALTY CORPORATION AND THE OHIO CASUALTY GROUP
Ohio Casualty Corporation or "Ohio Casualty" is a holding company
which engages in the business of property and casualty insurance and
insurance premium financing through its subsidiaries. Ohio Casualty's
insurance operations are conducted by its insurance company subsidiaries
which are collectively referred to in this prospectus as the "Ohio
Casualty Group". The principal executive office of Ohio Casualty is
located at 136 North Third Street, Hamilton, Ohio 45025 and its telephone
number is (513) 867-3000.
The Ohio Casualty Group provides a wide range of commercial and
personal property and casualty insurance products to businesses, government
units, associations and individuals. The Ohio Casualty Group consists of
four principal insurance subsidiaries: The Ohio Casualty Insurance Company,
West American Insurance Company, Ohio Security Insurance Company and American
Fire & Casualty Company. The following table illustrates the corporate
relationship of Ohio Casualty and these four principal insurance company
subsidiaries:
OHIO CASUALTY CORPORATION
an Ohio corporation
Owned 100%
THE OHIO CASUALTY INSURANCE
COMPANY
an Ohio corporation
Owned 100%, except as indicated
AMERICAN FIRE & CASUALTY
COMPANY
an Ohio corporation
OHIO SECURITY INSURANCE COMPANY
an Ohio corporation
One shareholder owns .001% of the
shares of Ohio Security Insurance Company,
with the remainder owned by The Ohio
Casualty Insurance Company
WEST AMERICAN INSURANCE COMPANY
an Indiana corporation
The Ohio Casualty Group transacts business in over 40 states. The
commercial lines business of the Ohio Casualty Group, which accounted for
45.9% of net written premiums in
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1998, includes workers' compensation; general liability; commercial
multi-peril; commercial automobile; property, including fire and allied
lines; fidelity and surety and several specialty lines. The personal lines
business of the Ohio Casualty Group, which accounted for the remaining 54.1%
of net written premiums in 1998, includes primarily personal automobile and
homeowner's insurance sold to individuals. As of December 31, 1998, Ohio
Casualty had total assets of $4.8 billion and shareholder's equity of $1.3
billion.
USE OF PROCEEDS
Ohio Casualty expects to use the net proceeds from the sale of its
senior and subordinated debt securities for general corporate purposes. Such
purposes may include, but are not limited to:
. repayment or redemption of outstanding debt;
. repurchase of shares;
. working capital;
. acquisitions;
. other corporate purposes; and/or
. contributions to one or more of its subsidiaries for any of the
above listed purposes.
Pending the use of the proceeds for these purposes, Ohio Casualty will
invest the net proceeds from the sale of the debt securities in accordance
with its investment policy in effect at the time of the sale. Ohio Casualty
may indicate a different purpose for the sale of any debt securities in the
prospectus supplement relating to those securities.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for Ohio Casualty and its consolidated subsidiaries for the periods indicated.
Ohio Casualty has calculated the ratio by dividing earnings by fixed charges.
For purposes of this calculation, earnings include income from continuing
operations before income taxes plus fixed charges. Fixed charges include
interest expense on debt, amortization of debt expense and the portion of
rents representative of the interest factor.
<TABLE>
<CAPTION>
Fiscal Fiscal Fiscal Fiscal Fiscal
Year Year Year Year Year
Ended Ended Ended Ended Ended
December December December December December
31, 31, 31, 31, 31,
Period 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges 14.02 23.51 15.07 14.82 13.13
</TABLE>
DESCRIPTION OF THE DEBT SECURITIES
SENIOR DEBT INDENTURE AND SUBORDINATED DEBT INDENTURE
Ohio Casualty may issue its debt securities, consisting of notes,
debentures or other indebtedness, from time to time in one or more series.
Ohio Casualty will issue any senior debt securities pursuant to a senior
indenture entered into between Ohio Casualty and Chase Manhattan Trust
Company, National Association, as trustee. Ohio Casualty will issue any
subordinated debt securities pursuant to a subordinated indenture entered
into between Ohio Casualty and Chase Manhattan Trust Company, National
Association, as trustee.
The senior debt indenture and the subordinated debt indenture are
substantially identical except that (1) the subordinated debt indenture,
unlike the senior debt indenture, provides for debt securities which are
specifically made junior in right of payment to other specified indebtedness
of Ohio Casualty and (2) the senior debt indenture, unlike the subordinated
debt indenture, restricts the ability of Ohio Casualty to use the shares of
its principal insurance company subsidiaries to secure any of its
indebtedness, unless it grants a similar security interest in these
subsidiary shares to the holders of the debt securities issued pursuant to
the senior debt indenture. Neither the senior debt indenture nor the
subordinated debt indenture limit the aggregate principal amount of
indebtedness that Ohio Casualty may issue from time to time.
The senior debt indenture and the subordinated debt indenture are
included as exhibits to the registration statement of which this prospectus
forms a part. The following description provides a general summary of the
material terms and conditions of each of these indentures and the debt
securities issued pursuant to these indentures.
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BECAUSE THE FOLLOWING DISCUSSION IS ONLY A SUMMARY, THE INDENTURES
MAY CONTAIN LANGUAGE WHICH EXPANDS UPON OR LIMITS THE STATEMENTS MADE IN THIS
PROSPECTUS. ACCORDINGLY, WE STRONGLY ENCOURAGE YOU TO REFER TO THE INDENTURES
FOR A COMPLETE UNDERSTANDING OF THE TERMS AND CONDITIONS APPLICABLE TO THE
INDENTURES AND THE DEBT SECURITIES.
SENIOR AND SUBORDINATED DEBT SECURITIES
The debt securities will be unsecured senior or subordinated
obligations of Ohio Casualty. The term "senior" is generally used to describe
debt obligations which entitle the holder to receive payment of principal and
interest upon the happening of certain events prior to the holders of
"subordinated" debt. Events which can trigger the right of holders of senior
indebtedness to receive payment of principal and interest prior to payments
to the holders of subordinated indebtedness include insolvency, bankruptcy,
liquidation, dissolution, receivership, reorganization or an event of default
under the senior indebtedness.
Ohio Casualty may issue the senior debt securities, pursuant to the
senior debt indenture, in one or more series. All series of senior debt
securities issued under the senior debt indenture will be equal in ranking.
The senior debt securities also will rank equally with all other unsecured
indebtedness of Ohio Casualty, other than unsecured indebtedness expressly
designated by the holders thereof to be subordinate to the senior debt
securities of Ohio Casualty.
The senior indebtedness issued pursuant to the senior debt indenture
will rank junior and be subordinate to any secured indebtedness of Ohio
Casualty. In the event of a bankruptcy or other liquidation event involving
a distribution of assets to satisfy outstanding indebtedness of Ohio Casualty
or an event of default under a loan agreement relating to the secured
indebtedness, the holders of Ohio Casualty's secured indebtedness would be
entitled to receive payment of principal and interest prior to payments on the
senior indebtedness issued under the senior debt indenture.
Additionally, the senior indebtedness issued pursuant to the senior
debt indenture will rank junior and be subordinate to any indebtedness of Ohio
Casualty's subsidiaries. In the event of a bankruptcy, receivership,
state-ordered rehabilitation, liquidation or similar event involving a
subsidiary, the assets of that subsidiary would be used to satisfy claims of
policyholders and creditors of the subsidiary rather than creditors of Ohio
Casualty. As a result of the application of the subsidiary's assets to
satisfy claims of policyholders and creditors, the value of the stock of the
subsidiary would be diminished and perhaps rendered worthless. Any such
diminution in the value of the shares of its subsidiaries would adversely
impact Ohio Casualty's financial condition and possibly impair Ohio Casualty's
ability to meet its obligations on the debt securities. In addition, any
liquidation of the assets of an Ohio Casualty subsidiary to satisfy claims of
the subsidiary's policyholders and creditors might make it impossible for
such subsidiary to pay dividends to Ohio Casualty. This inability to pay
dividends would further impair Ohio Casualty's ability to satisfy its
obligations under the debt securities.
As of December 31, 1998, Ohio Casualty had no secured indebtedness
which would have ranked senior to any indebtedness issued under the senior
debt indenture. In addition, as of that
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date, Ohio Casualty had $265,000,000 of unsecured indebtedness which would
have ranked equal to indebtedness issued under the senior debt indenture.
Also, as of December 31, 1998, Ohio Casualty's subsidiaries had no
outstanding indebtedness.
The debt securities issued under the subordinated debt indenture will
be subordinate in right of payment in respect of principal, any premium and
interest owing under the subordinated debt securities to all senior
indebtedness of Ohio Casualty in the manner described below under the
caption "Subordination under the Subordinated Debt Indenture."
PROSPECTUS SUPPLEMENTS
Ohio Casualty will provide a prospectus supplement to accompany this
prospectus for each series of debt securities it offers. In the prospectus
supplement, Ohio Casualty will describe the following terms and conditions of
the series of debt securities which it is offering, to the extent applicable:
. Whether the securities are senior or subordinated, the specific
designation of the series of debt securities being offered, the
aggregate principal amount of debt securities of such series,
the purchase price for the debt securities and the denominations
of the debt securities.
. The currency or currencies in which the debt securities will be
denominated and in which principal, any premium and any interest
will or may be payable or a description of any units based on or
relating to a currency or currencies in which the debt securities
will be denominated.
. The date or dates upon which the debt securities are payable.
. The interest rate or rates applicable to the debt securities or
the method for determining such rate or rates, whether the rate
or rates are fixed or variable and the dates on which interest
will be payable.
. The place or places where the principal of, any premium and any
interest on the debt securities will be payable.
. Any mandatory or optional redemption, repayment or sinking fund
provisions applicable to the debt securities. A redemption or
repayment provision could either obligate or permit Ohio Casualty
to buy back the debt securities on terms that it designates in the
prospectus supplement. A sinking fund provision could either
obligate or permit Ohio Casualty to set aside a certain amount of
assets for payments upon the debt securities, including payment
upon maturity of the debt securities or payment upon redemption
of the debt securities.
. Whether the debt securities will be issued in registered form,
in bearer form or in both registered and bearer form. In general,
ownership of registered debt
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securities is evidenced by the records of the issuing entity.
Accordingly, a holder of registered debt securities may transfer
the securities only on the records of the issuer. By contrast,
ownership of bearer debt securities generally is evidenced by
physical possession of the securities. Accordingly, the holder
of a bearer debt security can transfer ownership merely by
transferring possession of the security.
. Any restrictions or special procedures applicable to (1) the
place of payment of the principal, any premium and any interest
on bearer debt securities, (2) the exchange of bearer debt
securities for registered debt securities or (3) the sale
and delivery of bearer debt securities. A holder of debt
securities will not be able to exchange registered debt
securities into bearer debt securities except in limited
circumstances.
. Whether Ohio Casualty is issuing the debt securities in whole or
in part in global form. If debt securities are issued in global
form, the prospectus supplement will disclose the identity of the
depositary for such debt securities and any terms and conditions
applicable to the exchange of debt securities in whole or in
part for other definitive securities. Debt securities in global
form are discussed in greater detail below under the heading
"Global Debt Securities".
. Any United States federal income tax consequences applicable to
the debt securities, including any debt securities denominated
and made payable, as described in the prospectus supplements, in
foreign currencies, or units based on or related to foreign
currencies.
. Any proposed listing of the debt securities on a securities
exchange.
. Any right of Ohio Casualty to satisfy and discharge its
obligations under the debt securities, or terminate or eliminate
restrictive covenants or events of default in the indentures, by
depositing money or U.S. government obligations with the trustee
of the indentures.
. The names of any trustee, depositary, authenticating or paying
agent, transfer agent, registrar or other agent with respect to
the debt securities.
. Any right of Ohio Casualty to defer payments of interest on the
debt securities.
. Any other specific terms of the debt securities, including any
modifications to the events of default under the debt securities
and any other terms which may be required by or advisable under
applicable laws or regulations.
Holders of the debt securities may present their securities for
exchange and may present registered debt securities for transfer in the
manner described in the applicable prospectus supplement. Except as limited
by the applicable indenture, Ohio Casualty will provide these
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services without charge, other than any tax or other governmental charge
payable in connection with the exchange or transfer.
Debt securities may bear interest at a fixed rate or a floating rate
as specified in the prospectus supplement. In addition, if specified in the
prospectus supplement, Ohio Casualty may sell debt securities bearing no
interest or interest at a rate that at the time of issuance is below the
prevailing market rate, at a discount below their stated principal amount.
Ohio Casualty will describe in the applicable prospectus supplement any
special United States federal income tax considerations applicable to these
discounted debt securities. These securities generally will be treated as
having been issued at a discount for United States federal income tax
purposes.
Ohio Casualty may issue debt securities with the principal amount
payable on any principal payment date, or the amount of interest payable on
any interest payment date, to be determined by reference to one or more
currency exchange rates, commodity prices, equity indices or other factors.
Holders of such debt securities may receive a principal amount on any
principal payment date, or a payment of interest on any interest payment
date, that is greater or less than the amount of principal or interest
otherwise payable on such dates, depending upon the value on such dates of
applicable currency, commodity, equity index or other factors. Ohio
Casualty will set forth information as to the methods for determining the
amount of principal or interest payable on any date, the currencies,
commodities, equity indices or other factors to which the amount payable on
that date is linked and certain additional tax considerations in the
applicable prospectus supplement.
GLOBAL DEBT SECURITIES
Ohio Casualty may issue registered debt securities in global form.
This means that one "global" debt security would be issued to represent a
number of registered debt securities. The denomination of the global debt
security would equal the aggregate principal amount of all registered debt
securities represented by that global debt security.
Ohio Casualty will deposit any registered debt securities issued in
global form with a depositary, or with a nominee of the depositary, that Ohio
Casualty will name in the applicable prospectus supplement. Any person
holding an interest in the global debt security through the depositary will
be considered the "beneficial" owner of that interest. A "beneficial owner"
of a security is able to enjoy rights associated with ownership of the
security, even though the beneficial owner is not recognized as the legal
owner of the security. The interest of the beneficial owner in the security
is considered the "beneficial interest." Ohio Casualty will register the
debt securities in the name of the depositary or the nominee of the
depositary, as appropriate.
The depositary or its nominee may only transfer a global debt
security in its entirety and only in the following circumstances:
. by the depositary for the registered global security to a
nominee of the depositary;
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. by a nominee of the depositary to the depositary or to
another nominee of the depositary; or
. by the depositary or the nominee of the depositary to a
successor of the depositary or to a nominee of the successor.
These restrictions on transfer would not apply to a global debt security after
the depositary or its nominee, as applicable, exchanged the global debt
security for registered debt securities issued in definitive form.
Ohio Casualty will describe the specific terms of the depositary
arrangement with respect to any series of debt securities represented by a
registered global security in the prospectus supplement relating to that
series. Ohio Casualty anticipates that the following provisions will apply
to all depositary arrangements for debt securities represented by a
registered global security.
Ownership of beneficial interests in a registered global security
will be limited to (1) participants that have accounts with the depositary for
the registered global security and (2) persons that may hold interests through
those participants. Upon the issuance of a registered global security, the
depositary will credit each participant's account on the depositary's
book-entry registration and transfer system with the principal amount of debt
securities represented by the registered global security beneficially owned by
that participant. Initially, the dealers, underwriters or agents
participating in the distribution of the debt securities will designate the
accounts that the depositary should credit.
Ownership of beneficial interests in the registered global security
will be shown on, and the transfer of ownership interests will be effected
only through, records maintained by the depositary for the registered global
security, with respect to interests of participants, and on the records of
participants, with respect to interests of persons holding through
participants. The laws of some states may require that purchasers of
securities regulated by the laws of those states take physical delivery of
the securities in definitive form. Those laws may impair the ability to own,
transfer or pledge beneficial interests in registered global securities.
As long as the depositary for a registered global security, or its
nominee, is the registered owner of the registered global security, that
depositary or its nominee will be considered the sole owner or holder of the
debt securities represented by the registered global security for all
purposes under the applicable indenture. Owners of beneficial interests in a
registered global security generally will not:
. be entitled to have the debt securities represented by the
registered global security registered in their own names;
. will not receive or be entitled to receive physical delivery of
the debt securities in definitive form; and
. will not be considered the owners or holders of the debt
securities under the applicable indenture.
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Accordingly, each person owning a beneficial interest in a registered
global security must rely on the procedures of the depositary for the
registered global security and, if that person owns through a participant, on
the procedures of the participant through which that person owns its interest,
to exercise any rights of a holder under the applicable indenture.
Ohio Casualty understands that under existing industry practices, if
Ohio Casualty requests any action of holders of debt securities or if an owner
of a beneficial interest in a registered global security desires to give or
take any action which a holder of debt securities is entitled to give or take
under the applicable indenture, the depositary for the registered global
security would authorize the participants holding the relevant beneficial
interests to give or take the action, and the participants would authorize
beneficial owners owning through the participants to give or take the action
or would otherwise act upon the instructions of beneficial owners owning
through them.
Ohio Casualty will make payments of principal, any premium and any
interest on a registered global security to the depositary or its nominee.
None of Ohio Casualty, the indenture trustee or any other agent of Ohio
Casualty or agent of the indenture trustee will have any responsibility or
liability for any aspect of the records relating to, or payments made on
account of, beneficial ownership interests in the registered global security
or for maintaining, supervising or reviewing any records relating to the
beneficial ownership interests.
Ohio Casualty expects that the depositary for any registered global
security, upon receipt of any payment of principal, premium or interest in
respect of the registered global security, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the registered global security as shown
on the records of the depositary.
Ohio Casualty also expects that standing customer instructions and
customary practices will govern payments by participants to owners of
beneficial interests in the registered global security owned through the
participants.
Ohio Casualty will issue its debt securities in definitive form in
exchange for a registered global security, if the depositary for such
registered global security is at any time unwilling or unable to continue as
depositary or ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, and if a successor depositary registered as a clearing
agency under the Securities Exchange Act of 1934 is not appointed within 90
days. In addition, Ohio Casualty may at any time and in its sole discretion
determine not to have any of the debt securities of a series represented by a
registered global security and, in such event, will issue debt securities of
the series in definitive form in exchange for the registered global security.
Ohio Casualty will register any debt securities issued in definitive
form in exchange for a registered global security in such name or names as
the depositary shall instruct the indenture trustee. Ohio Casualty expects
that the depositary will base these instructions upon directions received by
the depositary from participants with beneficial interests in the registered
global security.
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Ohio Casualty also may issue bearer debt securities of a series in
global form. Ohio Casualty will deposit these global bearer securities with
a common depositary or with a nominee for the depositary identified in the
prospectus supplement relating to the series. Ohio Casualty will describe
the specific terms and procedures of the depositary arrangement for the
bearer debt securities in the prospectus supplement relating to the series.
Ohio Casualty also will describe in the applicable prospectus supplement any
specific procedures for the issuance of debt securities in definitive form in
exchange for a bearer global security.
COVENANTS APPLICABLE TO THE DEBT SECURITIES
LIMITATIONS ON LIENS. Under section 3.9 of the senior debt indenture,
neither Ohio Casualty nor any of its restricted subsidiaries may use any
voting stock of a restricted subsidiary as security for any of its debts or
other obligations unless any debt securities issued under the senior debt
indenture are secured to the same extent as that debt or other obligation.
This restriction does not apply to liens existing at the time a corporation
becomes a restricted subsidiary of Ohio Casualty or any renewal or extension
of the existing lien and does not apply to shares of subsidiaries that are
not "restricted subsidiaries".
To qualify as a "subsidiary" of Ohio Casualty, as defined in section
1.1 of the indentures, Ohio Casualty must control, either directly or
indirectly, more than 50% of the outstanding shares of voting stock of the
corporation. Section 1.1 of the indentures defines voting stock as any class
or classes of stock having general voting power under ordinary circumstances
to elect a majority of the board of directors of the corporation in question,
except that, stock which carries only the right to vote conditionally on the
happening of an event is not considered voting stock.
As defined in section 1.1 of the indentures, "restricted subsidiaries"
of Ohio Casualty include (1) The Ohio Casualty Insurance Company, West
American Insurance Company, Ohio Security Insurance Company, American Fire &
Casualty Company, so long as they remain subsidiaries of Ohio Casualty; (2)
any other present or future insurance company subsidiary of Ohio Casualty, the
consolidated total assets of which constitute at least 20% of the total
consolidated assets of Ohio Casualty and (3) any successor to any such
subsidiary.
CONSOLIDATION, MERGER AND SALE OF ASSETS. Section 9.1 of both the
senior and subordinated debt indentures provides that Ohio Casualty will not
(1) consolidate with or merge into a third party, (2) sell, other than for
cash, or lease all or substantially all of its assets to any third party or
(3) purchase all or substantially all of the assets of any third party;
unless
. Ohio Casualty is the continuing entity in the transaction or, if
not, unless the successor entity expressly assumes Ohio Casualty's
obligations on the securities and under the indentures; and
. following the completion of the transaction, Ohio Casualty or the
successor entity in the transaction would be in compliance with
the covenants and conditions contained in the indentures.
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In the context of a merger or consolidation or sale, lease or purchase
of assets, the successor entity is the entity that assumes or otherwise becomes
obligated for the rights and obligations of the other party or parties to the
transaction.
The limitations on the transactions described above do not apply to a
recapitalization, change of control, or highly leveraged transaction unless
the transaction involves a consolidation; a merger of Ohio Casualty into a
third party; a sale, other than for cash, or lease to a third party of all or
substantially all of the assets of Ohio Casualty or a purchase by Ohio
Casualty of all or substantially all of the assets of a third party. In
addition, the indentures do not include any provisions that would increase
interest, provide an option to dispose of securities at a fixed price, or
otherwise protect debt security holders in the event of any recapitalization,
change of control, or highly leveraged transaction.
RESTRICTIONS ON DISPOSITIONS. Section 9.3 of both the senior and
subordinated debt indentures provides that neither Ohio Casualty nor any of
its restricted subsidiaries may issue, sell, assign, transfer or otherwise
dispose of any of the voting stock of a restricted subsidiary so long as any
of the debt securities remain outstanding. However, exceptions to this
restriction include situations where:
. the action must be taken to comply with the order of a court or
regulatory authority, unless the order was requested by Ohio
Casualty or one of its restricted subsidiaries;
. the shares involved are "directors' qualifying shares," or shares
purchased by directors for the purpose of meeting the eligibility
requirements for directors;
. Ohio Casualty disposes of all of the voting stock of a restricted
subsidiary owned by it or a restricted subsidiary for cash or
other property having a fair market value that is at least equal
to the fair market value of the disposed stock, as determined in
good faith by the board of directors of Ohio Casualty; or
. after completion of a sale or other disposition of the stock of a
restricted subsidiary, Ohio Casualty and its restricted
subsidiaries would own 80% or more of the voting stock of the
restricted subsidiary and the consideration received for the
disposed stock is at least equal to the fair market value of the
disposed stock.
The indentures do not restrict the transfer of assets from a
restricted subsidiary to any other person, including Ohio Casualty or another
of its subsidiaries.
EVENTS OF DEFAULT
With respect to any series of debt securities issued under either the
senior or subordinated debt indentures, section 5.1 of the indentures defines
an event of default as including:
. a default in payment of principal or any premium when due;
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. a default for 30 days in payment of any interest;
. a default in payment of any sinking fund installment when due;
. a failure to observe or perform any other covenant or agreement
in the debt securities or indenture, other than a covenant or
agreement included solely for the benefit of a different series
of debt securities, after 60 days written notice of the failure;
. events of bankruptcy, insolvency or reorganization; or
. a continuing default, for more than 10 days after notice of the
default, under any other indenture, mortgage, bond, debenture,
note or other instrument, under which Ohio Casualty or its
restricted subsidiaries may incur recourse indebtedness for
borrowed money in an aggregate principal amount exceeding
$10,000,000, if the default would result in the acceleration
of that indebtedness.
Section 5.1 of both the senior and subordinated debt indentures
provides that, under limited conditions specified in the indentures, where an
event of default occurs and is continuing, either the indenture trustee or
the holders of not less than 25% in principal amount of each affected series
of debt securities issued under the relevant indenture, treated as one class,
may declare the principal and accrued interest of all the affected debt
securities to be due and payable immediately. A similar right exists for the
trustee and the holders of not less than 25% of all outstanding debt
securities issued under an indenture, in the event of a default in the
performance of any covenants or agreements applicable to all outstanding debt
securities.
Upon conditions specified in the indentures, however, the holders
of a majority in principal amount of the affected outstanding series of debt
securities, or of all the debt securities as the case may be, may waive past
defaults under the indentures. Such an annulment may not occur where there
is a continuing default in payment of principal, any premium or interest on
the affected debt securities.
Section 6.2 of both the senior and subordinated debt indentures
entitles the trustee to obtain assurances of reasonable indemnity or security
by the debt security holders for any actions taken by the trustee at the
request of the security holders. The right of the indenture trustee to
indemnity or security is subject to the indenture trustee carrying out its
duties with a level of care or standard of care that is generally acceptable
and reasonable under the circumstances. An indemnity or indemnification is
an undertaking by one party to reimburse another upon the occurrence of an
anticipated loss.
Subject to the right of the indenture trustee to indemnification as
described above and except as otherwise described in the indentures, section
5.9 of the indentures provides that the holders of a majority of the
aggregate principal amount of the affected outstanding debt securities of
each series, treated as one class, may direct the time, method and place of
any proceeding to exercise any right or power conferred in the indentures or
for any remedy available to the trustee.
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Section 5.6 of the senior and subordinated debt indentures provides
that no holders of debt securities may institute any action against Ohio
Casualty, except for actions for payment of overdue principal, any premium or
interest, unless
. such holder previously gave written notice of the continuing
default to the trustee;
. the holders of at least 25% in principal amount of the
outstanding debt securities of each affected series, treated as
one class, asked the trustee to institute the action and offered
indemnity to the trustee for doing so;
. the trustee did not institute the action within 60 days of the
request; and
. the holders of a majority in principal amount of the outstanding
debt securities of each affected series, treated as one class,
did not direct the trustee to refrain from instituting the action.
Under section 3.4 of each indenture, Ohio Casualty will file annually
with the trustee a certificate either stating that no default exists or
specifying any default that does exist.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
If indicated in the applicable prospectus supplement, Ohio Casualty can
discharge and defease its obligations under the applicable indenture and debt
securities as set forth below and as provided in Article X of the senior and
subordinated debt indentures. For purposes of the indentures, obligations with
respect to debt securities are discharged and defeased when, through the
fulfillment of the conditions summarized below, Ohio Casualty is released and
discharged from performing any further obligations under the relevant
indenture with respect to the debt securities. Covenant defeasance occurs
when Ohio Casualty is released from performing any further obligations under
specific covenants in the indenture relating to the debt securities.
If provided for in the prospectus supplement, Ohio Casualty may elect
to defease and be discharged from any and all future obligations with respect
to debt securities of a particular series or debt securities within a
particular series (1) if the debt securities have not previously been
delivered to the trustee for cancellation and (2) have either become due and
payable or are by their terms due and payable, or scheduled for redemption
within one year. Ohio Casualty may make such discharge and defeasance election
by irrevocably depositing cash or U.S. government obligations with the
trustee in an amount certified to be sufficient to pay in full the principal,
any premium and interest on the relevant debt securities when due.
If provided for in the prospectus supplement, Ohio Casualty may elect
to defease and be discharged from its specific obligations under the
covenants contained in section 9.1 and section 3.5 of the indentures with
respect to any debt securities of or within a series and, if specified in the
prospectus supplement, its obligations under any other covenant contained in
the indentures. Ohio Casualty may make this covenant discharge and defeasance
election by irrevocably depositing cash or U.S. Government obligations with
the trustee in an amount certified to be
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sufficient to pay in full the principal, any premium and interest on the
relevant debt securities when due. Section 9.1 of the indentures prohibits
Ohio Casualty from consolidating with or merging into a third party or
selling, other than for cash, or leasing all or substantially all of its
assets to a third party unless the conditions described above under the
caption "Covenants Applicable to the Debt Securities--Consolidation, Merger
and Sale of Assets" are satisfied. Section 3.5 of the indentures requires
Ohio Casualty to preserve and keep in full force and effect its existence and
its charter and statutory rights and those of its subsidiaries, unless the
Board of Directors of Ohio Casualty determines that the loss of these rights
would not be materially disadvantageous to the holders of debt securities or
unless the transaction resulting in the loss of such rights would otherwise
be permitted under section 9.1 of the indentures or any other section of
Article IX of the indentures.
As a condition to any discharge and defeasance or covenant discharge
and defeasance, Ohio Casualty must provide the trustee an opinion of counsel
to the effect that the holders of the affected debt securities will not
recognize income, gain or loss for federal income tax purposes as a result of
the discharge and defeasance and will be taxed by the federal government on
the same amounts, in the same manner, and at the same times as if such
discharge and defeasance had not occurred. This opinion of counsel, in the
case of discharge and defeasance of any and all obligations with respect to
any debt securities, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable federal income tax law occurring
after the date of the relevant indenture.
Ohio Casualty may exercise its discharge and defeasance option
notwithstanding any prior covenant discharge and defeasance upon the affected
debt securities. If Ohio Casualty exercises its discharge and defeasance
option, payment of the affected debt securities may not be accelerated
because of an event of default. If it exercises its covenant discharge and
defeasance option, payment of the affected debt securities may not be
accelerated by reason of a default or an event of default with respect to the
covenants which have been discharged and defeased. If, however, acceleration
of the indebtedness under the debt securities occurs by reason of another
event of default, the value of the money and government obligations in the
defeasance trust on the date of acceleration could be less than the principal
and interest then due on the affected securities because the required
defeasance deposit is based upon scheduled cash flow rather than market value
which will vary depending upon interest rates and other factors.
MODIFICATION OF THE INDENTURES
Section 8.1 of both the senior and subordinated debt indentures
provides that Ohio Casualty and the trustee may enter into supplemental
indentures without the consent of the holders of debt securities to:
. secure any debt securities;
. evidence a successor corporation's assumption of Ohio
Casualty's obligations under the indentures and the debt
securities;
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. add covenants that protect holders of debt securities;
. cure any ambiguity or inconsistency in the indenture,
provided that such correction does not adversely affect the
holders of the affected debt securities;
. establish forms or terms for debt securities of any series; and
. evidence a successor trustee's acceptance of appointment.
Section 8.2 of the senior and subordinated debt indentures also
permits Ohio Casualty and the trustee, with the consent of the holders of at
least a majority in aggregate principal amount of outstanding affected debt
securities of all series issued under the relevant indenture, voting as one
class, to change, in any manner, the relevant indenture and the rights of the
holders of debt securities issued under that indenture. However, the consent
of each holder of an affected debt security is required for changes that:
. extend the stated maturity of, or reduce the principal of any
debt security;
. reduce the rate or extend the time of payment of interest;
. reduce any amount payable upon redemption;
. change the currency in which the principal, any premium or
interest is payable;
. reduce the amount of any original issue discount debt security
that is payable upon acceleration or provable in bankruptcy;
. alter specified provisions of the relevant indenture relating
to issued debt securities not denominated in U.S. dollars;
. impair the right to institute suit for the enforcement of any
payment on any debt security when due; or
. reduce the percentage in aggregate principal amount of debt
securities of any series.
The subordinated debt indenture may not be amended to alter the
subordination of any outstanding subordinated debt securities without the
consent of each holder of then outstanding senior indebtedness that would be
adversely affected by the amendment.
SUBORDINATION UNDER THE SUBORDINATED DEBT INDENTURE
Article XIII of the subordinated debt indenture provides that payment
of the principal, any premium and interest on debt securities issued under the
subordinated debt indenture will be subordinate and junior in right of
payment, to the extent and in the manner set forth in that indenture, to all
senior indebtedness of Ohio Casualty. Section 1.1 of the subordinated debt
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indenture defines senior indebtedness as the principal, any premium and
interest on all indebtedness of Ohio Casualty, whether incurred prior to or
after the date of the indenture:
. for money borrowed by it;
. for obligations of others that it directly or indirectly either
assumes or guarantees;
. in respect of letters of credit and acceptances issued or made
by banks in favor of Ohio Casualty; or
. issued or assumed as all or part of the consideration for the
acquisition of property, however acquired, or indebtedness
secured by property included in property, plant and equipment
accounts of Ohio Casualty at the time of acquisition, if Ohio
Casualty is directly liable for the payment of such debt.
Senior indebtedness also includes all deferrals, renewals, extensions
and refundings of, and amendments, modifications and supplements to the
indebtedness listed above.
Senior indebtedness does not include:
. any indebtedness of Ohio Casualty which, by its terms or the
terms of the instrument creating or evidencing it, has a
subordinate or equivalent right to payment with the subordinated
debt securities; or
. any of the indebtedness of Ohio Casualty to one of its
subsidiaries.
The subordinated debt indenture does not limit the amount of senior
indebtedness that Ohio Casualty can incur.
The holders of all senior indebtedness will be entitled to receive
payment of the full amount due on that indebtedness before the holders of any
subordinated debt securities or coupons relating to those subordinated debt
securities, in the event:
. of any insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar proceedings in respect of Ohio
Casualty or its property; or
. that debt securities of any series are declared due and payable
before their expressed maturity because of an event of default
other than an insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar proceeding in respect of Ohio
Casualty or its property.
Ohio Casualty may not make any payment of the principal or interest on
the subordinated debt securities or coupons during a continued default in
payment of any senior indebtedness or if any event of default exists under
the terms of any senior indebtedness.
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GOVERNING LAW
The indentures and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York, except to
the extent that the Trust Indenture Act of 1939 is applicable, in which case
the Trust Indenture Act will govern.
THE INDENTURE TRUSTEE
The Chase Manhattan Bank, an affiliate of the trustee, is one of a
number of banks with which Ohio Casualty and its subsidiaries maintain ordinary
banking relationships. Ohio Casualty and The Chase Manhattan Bank are
parties to a Credit Agreement dated October 27, 1997, as amended, pursuant to
which various lenders have agreed to make loans to Ohio Casualty in an
aggregate principal amount not exceeding $300,000,000 at any one time
outstanding to finance operations and for other general corporate purposes.
The Chase Manhattan Bank acts as administrative agent for such lenders under
the Credit Agreement. Ohio Casualty may use the net proceeds from the sale
of debt securities to retire all or a portion of the indebtedness under the
Credit Agreement with The Chase Manhattan Bank.
PLAN OF DISTRIBUTION
Ohio Casualty may sell the debt securities offered under this
prospectus through underwriters or agents or directly to purchasers.
SALE THROUGH UNDERWRITERS
If Ohio Casualty uses any underwriters in the sale of debt securities,
it will enter into an underwriting agreement with the underwriters. Ohio
Casualty will identify any underwriter and the underwriter's compensation,
including any underwriting discount, in the applicable prospectus supplement.
The prospectus supplement also will describe other terms of the offering,
including any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchanges on which the offered securities may be
listed.
The distribution of debt securities under this prospectus may occur
from time to time in one or more transactions at a fixed price or prices
which may change, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
SALE THROUGH DEALERS
If Ohio Casualty uses dealers in the sale of debt securities, it will
sell the debt securities to the dealers who may then resell those debt
securities to the public at varying prices determined by the dealers at the
time of resale. Ohio Casualty will include in the prospectus supplement the
names of the dealers and the terms of the transaction.
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DIRECT SALES AND SALES THROUGH AGENTS
Ohio Casualty may sell the debt securities through agents it
designates from time to time. In the prospectus supplement, Ohio Casualty
will name any agent involved in the offer or sale of the offered debt
securities, and it will describe any commissions payable by it to the agent.
Ohio Casualty also may sell the debt securities directly. In the case of
direct sale by Ohio Casualty, Ohio Casualty would not involve any
underwriters in the sale.
DELAYED DELIVERY CONTRACTS
If Ohio Casualty so indicates in the prospectus supplement, it may
authorize agents, underwriters or dealers to solicit offers from institutions
to purchase debt securities from it at the public offering price under
delayed delivery contracts. These contracts would provide for payment and
delivery on a specified date in the future. The contracts would be subject
only to those conditions described in the prospectus supplement. The
prospectus supplement will describe the commission payable for solicitation
of those contracts.
INDEMNIFICATION
Ohio Casualty may have agreements with the agents, underwriters and
dealers to indemnify them against civil liabilities, including liabilities
under the Securities Act of 1933 or to contribute with respect to payments
which agents, underwriters or dealers may be required to make as a result of
those civil liabilities.
UNDERWRITING DISCOUNTS AND COMMISSIONS, LISTING OF DEBT SECURITIES AND
TRANSACTIONS WITH OHIO CASUALTY
Underwriters, dealers and agents participating in a sale of debt
securities may be deemed underwriters as defined in the Securities Act of
1933, and any discounts and commissions received by them and any profit
realized by them on resale of the debt securities may be deemed underwriting
discounts and commissions under the Securities Act of 1933.
Unless Ohio Casualty indicates differently in a prospectus supplement,
it will not list the debt securities on any securities exchange. If it sells
a security offered under this prospectus to an underwriter for public offering
and sale, the underwriter may make a market for that security
but is not obligated to do so. Therefore, Ohio Casualty cannot provide any
certainty concerning the liquidity of any security offered under this
prospectus.
Agents, dealers and underwriters and their affiliates may be
customers of, engage in transactions with, or perform services for Ohio
Casualty or any of its subsidiary companies in the ordinary course of
business.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement,
Vorys, Sater, Seymour and Pease LLP, legal counsel to Ohio Casualty, will
pass upon the validity of the debt
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securities of Ohio Casualty. As of January 8, 1999, members of Vorys, Sater,
Seymour and Pease LLP and attorneys employed by Vorys, Sater, Seymour and
Pease LLP, together with members of their immediate families, beneficially
owned 32,573 common shares of Ohio Casualty.
EXPERTS
The consolidated balance sheets as of December 31, 1998, 1997 and
1996 and the consolidated statements of income, retained earnings and cash
flows for each of the three years in the period ended December 31, 1998,
incorporated by reference in this prospectus, have been incorporated herein
in reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
Ernst & Young LLP, independent auditors, have audited the special-
purpose financial statements of the Commercial Lines Business of American
Financial Corporation included in our Current Report [Form 8-K/A] dated
March 26, 1999, as set forth in their report, which is incorporated by
reference in this prospectus. These special-purpose financial statements are
incorporated by reference in reliance on Ernst & Young LLP's report, given
on their authority as experts in accounting and auditing.
MATTERS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITIES ACT OF 1974
ERISA, or the Employee Retirement Income Securities Act of 1974, as
amended, imposes restrictions on employee benefit plans that are subject to
ERISA and on fiduciaries of those employee benefit plans. In accordance with
ERISA's general fiduciary requirements, a fiduciary of any employee benefit
plan that is subject to ERISA, who is considering the purchase of debt
securities on behalf of that plan, should determine whether its purchase is
permitted under the governing plan documents and is prudent and appropriate
for the plan in view of its overall investment policy and the composition and
diversification of its portfolio.
Other provisions of ERISA, as well as Section 4975 of the Internal
Revenue Code of 1986, as amended, prohibit certain transactions between an
employee benefit plan that is subject to ERISA and persons who are either
"parties in interest" within the meaning of ERISA or "disqualified persons"
within the meaning of Section 4975 of the Internal Revenue Code. A fiduciary
considering the purchase of debt securities should consider whether the
purchase might constitute or result in a prohibited transaction under ERISA
or Section 4975 of the Internal Revenue Code.
Ohio Casualty and its affiliates may fall within the definition of a
"party in interest" or a "disqualified person" with respect to some plans
that are subject to ERISA. The purchase of debt securities by a plan that is
subject to ERISA and which Ohio Casualty or an affiliate is a "party in
interest" or a "disqualified person" may constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Internal Revenue Code, unless
the debt securities are acquired in accordance with an applicable exemption.
Any pension or other employee benefit plan proposing to acquire any debt
securities should consult with its legal counsel.
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WHERE YOU CAN FIND MORE INFORMATION
Ohio Casualty has filed with the Securities and Exchange Commission a
registration statement on Form S-3 under the Securities Act of 1933 to
register the securities offered by this prospectus. This prospectus does not
contain all the information set forth in the registration statement and the
exhibits to the registration statement.
Ohio Casualty files annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission.
You can read and copy any materials filed with the Securities and Exchange
Commission at its Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the Securities and Exchange Commission at
1-800-SEC-0330. In addition, the Securities and Exchange Commission
maintains an internet site that contains reports, proxy statements and other
information regarding Ohio Casualty which you may access at
http://www.sec.gov.
The rules and regulations of the Securities and Exchange Commission
allow Ohio Casualty to incorporate information about Ohio Casualty and its
financial condition into this prospectus by reference. This means that Ohio
Casualty can disclose important information to you by referring you to other
documents that it has filed with the Securities and Exchange Commission and
that information it files later with the Securities and Exchange Commission
will automatically update and supersede this information. The information
incorporated by reference is considered to be a part of this prospectus.
--------------------------
Ohio Casualty has incorporated by reference into this prospectus the
following documents filed by it with the Securities and Exchange Commission.
. Annual Report on Form 10-K for the fiscal year ended December
31, 1998 (File No. 0-5544);
. Current Report on Form 8-K, dated December 15, 1998 (File No.
0-5544);
. Current Report on Form 8-K/A dated February 16, 1999 (File No.
0-5544);
. Current Report on Form 8-K/A (Amendment No. 2), dated March 26,
1999 (File No. 0-5544);
. Current Report on Form 8-K, dated February 16, 1999 (File No.
0-5544); and
. Current Report on Form 8-K/A, dated March 26, 1999 (File No.
0-5544).
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Ohio Casualty also incorporates by reference any periodic reports and
proxy statements that it may file with the Securities and Exchange Commission
between the date of this prospectus and the termination of this offering.
Examples of periodic reports that Ohio Casualty may file include annual
reports on Form 10-K, quarterly reports on Form 10-Q and current reports on
Form 8-K.
You can obtain any of these documents, excluding any exhibits to the
documents, unless the exhibit is specifically incorporated by reference in
this prospectus, without charge, by writing or phoning Ohio Casualty at the
following address and phone number:
Ohio Casualty Corporation
136 North Third Street
Hamilton, Ohio 45025
(513) 867-3000
Attn: Barry S. Porter, CFO
For further information with respect to Ohio Casualty and the
securities offered by this prospectus, you should refer to the registration
statement, including exhibits to the registration statement, and the
documents incorporated in this prospectus by reference.
FORWARD LOOKING STATEMENTS
IN THIS DOCUMENT, OHIO CASUALTY HAS MADE FORWARD-LOOKING STATEMENTS
REGARDING EVENTS AND CIRCUMSTANCES THAT ARE SUBJECT TO RISKS AND
UNCERTAINTIES. FORWARD-LOOKING STATEMENTS INCLUDE THE INFORMATION CONCERNING
POSSIBLE OR ASSUMED FUTURE RESULTS OF OPERATIONS OF OHIO CASUALTY. ALSO,
WORDS SUCH AS "BELIEVES," "EXPECTS," "ANTICIPATES" OR SIMILAR EXPRESSIONS ARE
FORWARD-LOOKING STATEMENTS. INVESTORS SHOULD NOTE THAT MANY FACTORS, SOME OF
WHICH ARE DISCUSSED IN THIS DOCUMENT, COULD AFFECT THE FUTURE FINANCIAL
RESULTS OF OHIO CASUALTY AND COULD CAUSE THOSE RESULTS TO DIFFER MATERIALLY
FROM THOSE EXPRESSED IN THIS DOCUMENT. AMONG OTHERS, THESE FACTORS INCLUDE
THE "RISK FACTORS" BEGINNING ON PAGE 6.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimates, except the
Securities and Exchange Commission registration fee.
Securities and Exchange Commission registration fee.................$83,400
Printing and engraving...............................................20,000
Legal fees and expenses..............................................40,000
Fees of accountants..................................................50,000
Fees of trustees......................................................6,000
Rating agency fees..................................................200,000
Miscellaneous........................................................25,000
--------
Total..............................................................$424,400
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Division (E) of Section 1701.13 of the Ohio Revised Code and Article
V of Ohio Casualty's Code of Regulations relate to indemnification of Ohio
Casualty's directors and officers against liabilities arising in connection
with the performance of their respective duties.
Division (E) of Section 1701.13 of the Ohio Revised Code provides as
follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal
<PAGE>
action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, by reason
of the fact that he is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member, manager,
or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's fees,
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless, and only to the extent that,
the court of common pleas or the court in which such action or suit
was brought determines, upon application, that, despite the
adjudication of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses as the court of common pleas or such other court shall
deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer,
employee, member, manager, or agent has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in division (E)(1) or
(2) of this section. Such determination shall be made as follows:
<PAGE>
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties to
or threatened with the action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the
person who threatened or brought the action or suit by or in the
right of the corporation under division (E)(2) of this section, and,
within ten days after receipt of such notification, such person shall
have the right to petition the court of common pleas or the court in
which such action or suit was brought to review the reasonableness of
such determination.
(5)(a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the
regulations of a corporation state, by specific reference to this
division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director
in an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section is pursuant to section 1701.95 of the Revised Code,
expenses, including attorney's fees, incurred by a director in
defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition
of the action, suit, or proceeding, upon receipt of an undertaking by
or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the corporation or undertaken with reckless
disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or
<PAGE>
proceeding referred to in division (E)(1) or (2) of this section,
may be paid by the corporation as they are incurred, in advance of
the final disposition of the action, suit, or proceeding, as
authorized by the directors in the specific case, upon receipt of
an undertaking by or on behalf of the director, trustee, officer,
employee, member, manager, or agent to repay such amount, if it
ultimately is determined that he is not entitled to be indemnified
by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors,
or otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall
inure to the benefit of the heirs, executors, and administrators of
such a person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of or for any
person who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee, member, manager, or agent
of another corporation, domestic or foreign, nonprofit or for profit,
a limited liability company, or a partnership, joint venture, trust,
or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to
indemnify him against such liability under this section. Insurance
may be purchased from or maintained with a person in which the
corporation has a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions
(E)(5), (6), and (7) of this section. Divisions (E)(1) and (2) of this
section do not create any obligation to repay or return payments made
by the corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of
such a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
<PAGE>
Article V of Ohio Casualty's Code of Regulations provides as follows:
SECTION 1. MANDATORY INDEMNIFICATION. The corporation shall
indemnify (A) any officer or director of the corporation and (B) any
person (including an officer or director of the corporation) who has
served or is serving at the request of the corporation as a director,
trustee or officer of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (including,
without limitation, any action threatened or instituted by or in the
right of the corporation) by reason of the fact that he is or was a
director, trustee, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director,
trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust, or other enterprise, against expenses (including,
without limitation, attorneys' fees, filing fees, court reporters'
fees and transcript costs), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action
or proceeding, he had no reasonable cause to believe his conduct was
unlawful. A person claiming indemnification under this Section 1 shall
be presumed in respect of any act or omission giving rise to such
claim for indemnification, to have acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests
of the corporation, and with respect to any criminal matter, to have
had no reasonable cause to believe his conduct was unlawful, and the
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
SECTION 2. COURT-APPROVED INDEMNIFICATION. Anything
contained in the Regulations or elsewhere to the contrary
notwithstanding:
(A) the corporation shall not indemnify (i) any officer
or director of the corporation, or (ii) any person (including an officer
or director of the corporation) who has served or is serving at the
request of the corporation as a director, trustee or officer of
another corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise who was a
party to any completed action or suit instituted by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, in respect of any claim, issue or
matter asserted in such action or suit as to which he shall have been
adjudged to be liable for gross negligence or misconduct (other than
negligence) in the performance of his duty to
<PAGE>
the corporation unless and only to the extent that the Court of Common
Pleas of Butler County, Ohio or the court in which such action or suit
was brought shall determine upon application that despite such
adjudication of liability, and in view of all the circumstances of the
case, he is fairly and reasonably entitled to such indemnity as such
Court of Common Pleas or such other court shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 2.
SECTION 3. INDEMNIFICATION FOR EXPENSES. Anything contained
in the Regulations or elsewhere to the contrary notwithstanding, to
the extent that an officer or director of the corporation or any
person (including an officer or director of the corporation) who has
served or is serving at the request of the corporation as a director,
trustee or officer of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 1, or in
defense of any claim, issue, or matter therein, he shall be promptly
indemnified by the corporation against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) actually and reasonably incurred by him in
connection therewith.
SECTION 4. DETERMINATION REQUIRED. Any indemnification
required under Section 1 and not precluded under Section 2 shall be
made by the corporation only upon a determination that such
indemnification is proper in the circumstances because the person has
met the applicable standard of conduct set forth in Section 1. Such
determination may be made only (A) by a majority vote of a quorum
consisting of directors of the corporation who were not and are not
parties to, or threatened with, any such action, suit or proceeding or
(B) if such a quorum is not obtainable or if a majority of a quorum
of disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation, or any person to be
indemnified, within the past five years or (C) by the shareholders or
(D) by the Court of Common Pleas of Butler County, Ohio or (if the
corporation is a party thereto) the court in which such action, suit
or proceeding was brought, if any; any such determination may be
made by a court under subparagraph (D) of this Section at any time
(including, without limitation, any time before, during or after the
time when any such determination may be requested of, be under
consideration by or have been denied or disregarded by the
disinterested directors under subparagraph (A) or by independent legal
counsel under subparagraph (B) or by the shareholders under
subparagraph (C) of this Section); and no failure for any reason to
make any such determination, and no decision for any reason to deny
any such determination, by the disinterested directors under
subparagraph (A) or by independent legal counsel under subparagraph
(B) or by shareholders under subparagraph (C) of this Section
<PAGE>
shall be evidence in rebuttal of the presumption recited in Section 1.
Any determination made by the disinterested directors under
subparagraph (A) of this Section or by independent legal counsel
under subparagraph (B) of this Section to make indemnification in
respect of any claim, issue or matter asserted in an action or suit
threatened or brought by or in the right of the corporation shall be
promptly communicated to the person who threatened or brought such
action or suit, and within ten (10) days after receipt of such
notification such person shall have the right to petition the Court of
Common Pleas of Butler County, Ohio or the court in which such action
or suit was brought, if any, to review the reasonableness of such
determination.
SECTION 5. ADVANCES FOR EXPENSES. Expenses (including,
without limitation, attorneys fees, filing fees, court reporters'
fees and transcript costs) incurred in defending any action, suit or
proceeding referred to in Section 1 shall be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
to or on behalf of the officer, Director or other person entitled to
indemnity under Section 1 promptly as such expenses are incurred by
him, but only if such officer, Director or other person shall first
agree, in writing, to repay all amounts so paid in respect of any
claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on
the merits or otherwise:
(A) unless it shall ultimately be determined as
provided in Section 4 that he is not entitled to be indemnified by the
corporation as provided under Section 1; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the corporation in such action or suit,
he shall have been adjudged to be liable for gross negligence or
misconduct (other than negligence) in the performance of his duty to
the corporation, unless and only to the extent that the Court of
Common Pleas of Butler County, Ohio or the court in which such action
or suit was brought shall determine upon application that, despite
such adjudication of liability, and in view of all the circumstances,
he is fairly and reasonably entitled to all or part of such
indemnification.
SECTION 6. ARTICLE V NOT EXCLUSIVE. The indemnification
provided by this Article V shall not be deemed exclusive of any other
rights to which any person seeking indemnification may be entitled
under the Articles or the Regulations or any agreement, vote of
shareholders of the corporation or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as
to a person who has ceased to be an officer or director of the
corporation and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
SECTION 7. INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director,
trustee, officer,
<PAGE>
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee,
or agent of another corporation (domestic or foreign, nonprofit or for
profit), partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the obligation or the power to indemnify him
against such liability under the provisions of this Article V.
SECTION 8. CERTAIN DEFINITIONS. For purposes of this Article
V, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article
V shall be deemed to have been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 1, or
in defense of any claim, issue or other matter therein, if such action,
suit or proceeding shall be terminated as to such person, with or
without prejudice, without the entry of a judgment or order against
him, without a conviction of him, without the imposition of a fine
upon him, and without his payment or agreement to pay any amount in
settlement thereof (whether or not any such termination is based upon
a judicial or other determination of lack of merit of the claims
made against him or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include
employee benefit plans; references to a "fine" shall include any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of
the corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the
best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to
the best interest of the corporation" within the meaning of that term
as used in this Article V.
SECTION 9. VENUE. Any action, suit or proceeding to
determine a claim for indemnification under this Article V may be
maintained by the person claiming such indemnification, or by the
corporation, in the Court of Common Pleas of Butler County, Ohio.
The corporation and (by claiming such indemnification) each such
person consent to the exercise of jurisdiction over its or his person
by the Court of Common Pleas of Butler County, Ohio in any such action,
suit or proceeding.
Ohio Casualty has in force and effect a policy insuring the directors
and officers of Ohio Casualty against losses which they or any of them shall
become legally obligated to pay for any reason of any actual or alleged error
or misstatement or misleading statement or act or omission or neglect or
breach of duty by the directors and officers in the discharge of their duties,
<PAGE>
individually or collectively, or any matter claimed against them solely by
reason of their being directors or officers, such coverage being limited by
the specific terms and provisions of the insurance policy.
ITEM 16. EXHIBITS.
Exhibit
- -------
1.1+ Form of Underwriting Agreement.
4.1 Articles of Incorporation, as amended (incorporated by reference to
Exhibits 4(a), 4(b), 4(c), 4(d) and 4(e) of Ohio Casualty's Current
Report on Form 8-K, as filed with the Securities and Exchange
Commission on December 15, 1998).
4.2 Code of Regulations, as amended (incorporated by reference to
Exhibit 4(f) of Ohio Casualty's Current Report on Form 8-K, as filed
with the Securities and Exchange Commission on December 15, 1998).
4.3 Form of Senior Indenture to be entered into between Ohio Casualty
and Chase Manhattan Trust Company, National Association (the
"Indenture Trustee").
4.4 Form of Supplemental Indenture to Senior Indenture providing for the
issuance of senior notes.
4.5 Form of Senior Debt Security (included in Exhibit 4.4).
4.6 Form of Subordinated Indenture to be entered into between Ohio
Casualty and the Indenture Trustee.
4.7+ Form of Supplemental Indenture to Subordinated Indenture providing
for the issuance of subordinated notes.
4.8+ Form of Subordinated Debt Security (included in Exhibit 4.7).
5.1 Opinion of Vorys, Sater, Seymour and Pease LLP (incorporated by
reference to Exhibit 5.1 of Ohio Casualty's Registration Statement
on Form S-3, as filed with the Securities and Exchange Commission
on January 19, 1999, Registration No. 333-70761).
12.1 Statement re: Computation of consolidated ratio of earnings to
fixed charges.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Vorys, Sater, Seymour and Pease LLP (included in
Exhibit 5.1 of Ohio Casualty's Registration Statement on Form S-3,
as filed with the Securities and Exchange Commission on January 19,
1999, Registration No. 333-70761).
23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney for Ohio Casualty.
<PAGE>
Exhibit
- -------
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the Indenture Trustee, under the Senior Indenture
(incorporated by reference to Exhibit 25.1 of Ohio Casualty's
Registration Statement on Form S-3, as filed with the Securities
and Exchange Commission on January 19, 1999, Registration No.
333-70761).
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the Indenture Trustee, under the Subordinated Indenture.
(incorporated by reference to Exhibit 25.2 of Ohio Casualty's
Registration Statement on Form S-3, as filed with the Securities and
Exchange Commission on January 19, 1999, Registration No. 333-70761).
99.1 Credit Agreement by and between Ohio Casualty, various lenders and
The Chase Manhattan Bank (as administrative agent for the lenders),
dated as of October 27, 1997 (incorporated by reference to Exhibit
10c of Quarterly Report on Form 10-Q, as filed with the Securities
and Exchange Commission on November 14, 1997).
99.2 Amendment to Credit Agreement by and between Ohio Casualty, various
lenders and The Chase Manhattan Bank (as administrative agent for
the lenders), dated as of August 11, 1998 (incorporated by reference
to Exhibit 99.2 of Ohio Casualty's Registration Statement on Form
S-3, as filed with the Securities and Exchange Commission on January
19, 1999, Registration No. 333-70761).
+To be filed under subsequent Form 8-K.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities
and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the
<PAGE>
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 15, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by Registrant of expenses incurred or paid by a director, officer
or controlling person of Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(i) The undersigned Registrant hereby undertakes
that:
<PAGE>
(1) For purposes of determining any liability
under the Securities Act of 1933, the information omitted from
the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b) (1)
or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ohio
Casualty Corporation certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Hamilton, State of Ohio, on May 11
1999.
Ohio Casualty Corporation
By: /s/ Lauren N. Patch
----------------------------
Lauren N. Patch, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Lauren N. Patch President and Chief May 11, 1999
- ---------------------
Lauren N. Patch Executive Officer,
Director
*/s/ Joseph L. Marcum Chairman of the Board May 11, 1999
- ---------------------
Joseph L. Marcum Director
*/s/ William L. Woodall Vice Chairman of the May 11, 1999
- -----------------------
William L. Woodall Board, Director
*/s/ Barry S. Porter Chief Financial Officer May 11, 1999
- ----------------------
Barry S. Porter and Treasurer
*/s/ Arthur J. Bennert Director May 11, 1999
- ----------------------
Arthur J. Bennert
*/s/ Jack E. Brown Director May 11, 1999
- ----------------------
Jack E. Brown
*/s/ Catherine E. Dolan Director May 11, 1999
- -----------------------
Catherine E. Dolan
*/s/ Wayne R. Embry Director May 11, 1999
- -----------------------
Wayne R. Embry
<PAGE>
*/s/ Vaden Fitton Director May 11, 1999
- -----------------------
Vaden Fitton
*/s/ Stephen S. Marcum Director May 11, 1999
- ------------------------
Stephen S. Marcum
*/s/ Stanley N. Pontius Director May 11, 1999
- ------------------------
Stanley N. Pontius
*/s/ Howard L. Sloneker III Director May 11, 1999
- ---------------------------
Howard L. Sloneker III
*Pursuant to Power of Attorney
<PAGE>
EXHIBIT INDEX
Exhibit
- -------
1.1+ Form of Underwriting Agreement.
4.1 Articles of Incorporation, as amended (incorporated by reference to
Exhibits 4(a), 4(b), 4(c), 4(d) and 4(e) of the Current Report on
Form 8-K of Ohio Casualty Corporation, as filed with the Securities
and Exchange Commission on December 15, 1998).
4.2 Code of Regulations, as amended (incorporated by reference to
Exhibit 4(f) of Ohio Casualty Corporation's Current Report on Form
8-K, as filed with the Securities and Exchange Commission on December
15, 1998).
4.3 Form of Senior Indenture to be entered into between Ohio Casualty
Corporation and Chase Manhattan Trust Company, National Association
(the "Indenture Trustee").
4.4 Form of Supplemental Indenture to Senior Indenture providing for the
issuance of senior notes.
4.5 Form of Senior Debt Security (included in Exhibit 4.4).
4.6 Form of Subordinated Indenture to be entered into between Ohio
Casualty and the Indenture Trustee.
4.7+ Form of Supplemental Indenture to Subordinated Indenture providing
for the issuance of subordinated notes.
4.8+ Form of Subordinated Debt Security (included in Exhibit 4.7).
5.1 Opinion of Vorys, Sater, Seymour and Pease LLP (incorporated by
reference to Exhibit 5.1 of Ohio Casualty's Registration Statement
on Form S-3, as filed with the Securities and Exchange Commission
on January 19, 1999, Registration No. 333-70761).
12.1 Statement re: Computation of consolidated ratio of earnings to fixed
charges.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Vorys, Sater, Seymour and Pease LLP (included in Exhibit
5.1 of Ohio Casualty's Registration Statement on Form S-3, as filed
with the Securities and Exchange Commission on January 19, 1999,
Registration No. 333-70761).
23.3 Consent of Ernst & Young LLP.
24.1 Powers of Attorney for Ohio Casualty Corporation.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the Indenture Trustee, under the Senior Indenture
(incorporated by reference to Exhibit 25.1 of Ohio Casualty's
Registration Statement on Form S-3, as filed with the Securities
and Exchange Commission on January 19, 1999, Registration No.
333-70761).
<PAGE>
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the Indenture Trustee, under the Subordinated Indenture
(incorporated by reference to Exhibit 25.2 of Ohio Casualty's
Registration Statement on Form S-3, as filed with the Securities and
Exchange Commission on January 19, 1999, Registration No. 333-70761).
99.1 Credit Agreement by and between Ohio Casualty Corporation, various
lenders and The Chase Manhattan Bank (as administrative agent for
the lenders), dated as of October 27, 1997 (incorporated by
reference to Exhibit 10c of Quarterly Report on Form 10-Q, as filed
with the Securities and Exchange Commission on November 14, 1997).
99.2 Amendment to Credit Agreement by and between Ohio Casualty
Corporation, various lenders and The Chase Manhattan Bank (as
administrative agent for the lenders), dated as of August 11, 1998
(incorporated by reference to Exhibit 99.2 of Ohio Casualty's
Registration Statement on Form S-3, as filed with the Securities
and Exchange Commission on January 19, 1999, Registration No.
333-70761).
+To be filed under subsequent Form 8-K.
<PAGE>
EXHIBIT 4.3
Form of Senior Indenture to be entered into between Ohio Casualty and the
Indenture Trustee
<PAGE>
OHIO CASUALTY CORPORATION
AND
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
FORM OF
SENIOR INDENTURE
Dated as of
-----------------------
<PAGE>
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
between Ohio Casualty Corporation and Chase Manhattan
- ---------------------
Trust Company, National Association:
SECTION OF THE ACT SECTION OF INDENTURE
310(a)(1) and (2)........................................................6.9
310(a)(3) and (4)...............................................Inapplicable
310(b)..........................................6.8 and 6.10(1), (2) and (4)
310(c)..........................................................Inapplicable
311(a)..................................................................6.13
311(b)..................................................................6.13
311(c)..........................................................Inapplicable
312(a)...........................................................4.1 and 4.2
312(b)...................................................................4.2
312(c)...................................................................4.2
313(a)...................................................................4.3
313(b)(1).......................................................Inapplicable
313(b)(2)................................................................4.3
313(c)...................................4.3, 5.11, 6.10, 6.11, 8.2 and 12.2
313(d)...................................................................4.3
314(a)..........................................................3.4 and 3.11
314(b)..........................................................Inapplicable
314(c)(1) and (2).......................................................11.5
314(c)(3).......................................................Inapplicable
314(d)..........................................................Inapplicable
314(e)..................................................................11.5
314(f)..........................................................Inapplicable
315(a), (c) and (d)......................................................6.1
315(b)..................................................................5.11
315(e)..................................................................5.12
316(a)(1).......................................................5.9 and 5.10
316(a)(2).......................................................Not required
316(a) (last sentence)...................................................7.4
316(b)...................................................................5.7
317(a)...................................................................5.2
317(b)...................................................................3.3
318(a)..................................................................11.7
* This Cross Reference Sheet is not part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Page
----
ARTICLE I DEFINITIONS.....................................................................1
Section 1.1 Certain Terms Defined.....................................................1
---------------------
ARTICLE II SECURITIES.....................................................................7
Section 2.1 Forms Generally...........................................................7
---------------
Section 2.2 Form of Trustee's Certificate of Authentication...........................7
-----------------------------------------------
Section 2.3 Amount Unlimited; Issuable in Series......................................8
------------------------------------
Section 2.4 Authentication and Delivery of Securities................................11
-----------------------------------------
Section 2.5 Execution of Securities..................................................13
-----------------------
Section 2.6 Certificate of Authentication............................................13
-----------------------------
Section 2.7 Denomination and Date of Securities; Payments of Interest................14
---------------------------------------------------------
Section 2.8 Registration, Transfer and Exchange......................................14
-----------------------------------
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities................18
---------------------------------------------------------
Section 2.10 Cancellation of Securities; Destruction Thereof..........................19
-----------------------------------------------
Section 2.11 Temporary Securities.....................................................19
--------------------
ARTICLE III COVENANTS OF THE ISSUER......................................................20
Section 3.1 Payment of Principal, Premium and Interest...............................20
------------------------------------------
Section 3.2 Offices for Payments, Etc................................................21
-------------------------
Section 3.3 Money for Security Payments to be Held in Trust; Unclaimed Money.........22
----------------------------------------------------------------
Section 3.4 Statements of Officers of Issuer as to Default; Notice of Default........23
-----------------------------------------------------------------
Section 3.5 Existence................................................................23
---------
Section 3.6 Maintenance of Properties................................................23
-------------------------
i
<PAGE>
Section 3.7 Payment of Taxes and Other Claims........................................23
---------------------------------
Section 3.8 Further Instruments and Acts.............................................24
----------------------------
Section 3.9 Limitation on Liens......................................................24
-------------------
Section 3.10 Luxembourg Publications..................................................24
-----------------------
Section 3.11 Commission Reports.......................................................24
------------------
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE.............................................................24
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
------------------------------------------------------------------
Securityholders...................................................24
---------------
Section 4.2 Preservation of Information; Communications to Holders...................25
------------------------------------------------------
Section 4.3 Reports by the Trustee...................................................25
----------------------
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT.............................................................25
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default....25
---------------------------------------------------------------------
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt............28
-------------------------------------------------------------
Section 5.3 Application of Proceeds..................................................30
-----------------------
Section 5.4 Suits for Enforcement....................................................31
---------------------
Section 5.5 Restoration of Rights on Abandonment of Proceedings......................31
---------------------------------------------------
Section 5.6 Limitations on Suits by Securityholders..................................31
---------------------------------------
Section 5.7 Unconditional Right of Securityholders to Institute Certain Suits........32
-----------------------------------------------------------------
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
---------------------------------------------------------------
Default.............................................................32
-------
Section 5.9 Control by Holders of Securities.........................................33
--------------------------------
Section 5.10 Waiver of Past Defaults..................................................33
-----------------------
Section 5.11 Trustee to Give Notice of Default, but May Withhold in Certain
--------------------------------------------------------------
Circumstances.......................................................33
-------------
ii
<PAGE>
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs.............34
------------------------------------------------------------
ARTICLE VI CONCERNING THE TRUSTEE........................................................34
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
--------------------------------------------------------------------
Default.............................................................34
-------
Section 6.2 Certain Rights of the Trustee............................................36
-----------------------------
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
------------------------------------------------------------------
Application of Proceeds Thereof....................................37
-------------------------------
Section 6.4 Trustee and Agents May Hold Securities or Coupons; Collections, Etc......37
-------------------------------------------------------------------
Section 6.5 Moneys Held by Trustee...................................................37
----------------------
Section 6.6 Compensation and Indemnification of Trustee and its Prior Claim..........37
---------------------------------------------------------------
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc...................38
------------------------------------------------------
Section 6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee..38
-----------------------------------------------------------------------
Section 6.9 Persons Eligible for Appointment as Trustee..............................38
-------------------------------------------
Section 6.10 Resignation and Removal; Appointment of Successor Trustee................39
---------------------------------------------------------
Section 6.11 Acceptance of Appointment by Successor Trustee...........................40
----------------------------------------------
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of
--------------------------------------------------------------
Trustee..............................................................41
-------
Section 6.13 Preferential Collection of Claims Against the Issuer.....................42
----------------------------------------------------
Section 6.14 Appointment of Authenticating Agent......................................42
-----------------------------------
ARTICLE VII CONCERNING THE SECURITYHOLDERS...............................................43
Section 7.1 Evidence of Action Taken by Securityholders..............................43
-------------------------------------------
Section 7.2 Proof of Execution of Instruments and of Holding of Securities...........43
--------------------------------------------------------------
Section 7.3 Holders to Be Treated as Owners..........................................44
-------------------------------
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding........................44
-------------------------------------------------
Section 7.5 Right of Revocation of Action Taken......................................45
-----------------------------------
iii
<PAGE>
ARTICLE VIII SUPPLEMENTAL INDENTURES.....................................................45
Section 8.1 Supplemental Indentures Without Consent of Securityholders...............45
----------------------------------------------------------
Section 8.2 Supplemental Indentures With Consent of Securityholders..................46
-------------------------------------------------------
Section 8.3 Effect of Supplemental Indenture.........................................48
--------------------------------
Section 8.4 Documents to Be Given to Trustee.........................................48
--------------------------------
Section 8.5 Notation on Securities in Respect of Supplemental Indentures.............48
------------------------------------------------------------
Section 8.6 Conformity with Trust Indenture Act of 1939..............................49
-------------------------------------------
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE.....................................49
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms......................49
---------------------------------------------------
Section 9.2 Successor Substituted for the Issuer.....................................49
------------------------------------
Section 9.3 Restrictions on Certain Dispositions.....................................49
------------------------------------
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS......................50
Section 10.1 Termination of Issuer's Obligations Under the Indenture.................50
-------------------------------------------------------
Section 10.2 Application of Trust Funds..............................................51
--------------------------
Section 10.3 Applicability of Defeasance Provisions; Issuer's Option to Effect
-----------------------------------------------------------------
Defeasance or Covenant Defeasance....................................51
---------------------------------
Section 10.4 Defeasance and Discharge................................................51
------------------------
Section 10.5 Covenant Defeasance.....................................................52
-------------------
Section 10.6 Conditions to Defeasance or Covenant Defeasance.........................52
-----------------------------------------------
Section 10.7 Deposited Money and U.S. Government Obligations to be Held in Trust.....54
-------------------------------------------------------------------
Section 10.8 Repayment to Issuer.....................................................54
-------------------
Section 10.9 Indemnity For U.S. Government Obligations...............................54
-----------------------------------------
Section 10.10 Reimbursement...........................................................55
-------------
iv
<PAGE>
ARTICLE XI MISCELLANEOUS PROVISIONS......................................................55
Section 11.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt
--------------------------------------------------------------------
from Individual Liability .........................................55
-------------------------
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of
----------------------------------------------------------------------
Securities and Coupons.............................................55
----------------------
Section 11.3 Successors and Assigns of Issuer Bound by Indenture.....................55
---------------------------------------------------
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities and
--------------------------------------------------------------------
Coupons.............................................................55
-------
Section 11.5 Officer's Certificates and Opinions of Counsel; Statements to Be
----------------------------------------------------------------
Contained Therein..................................................56
-----------------
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.........................57
-----------------------------------------------
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of
------------------------------------------------------------------
1939................................................................57
----
Section 11.8 New York Law to Govern..................................................57
----------------------
Section 11.9 Counterparts............................................................58
------------
Section 11.10 Effect of Headings......................................................58
------------------
Section 11.11 Securities in a Foreign Currency or in ECU..............................58
------------------------------------------
Section 11.12 Judgment Currency.......................................................58
-----------------
Section 11.13 Separability Clause.....................................................59
-------------------
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS...................................59
Section 12.1 Applicability of Article................................................59
------------------------
Section 12.2 Notice of Redemption; Partial Redemptions...............................59
-----------------------------------------
Section 12.3 Payment of Securities Called for Redemption.............................61
-------------------------------------------
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection for
------------------------------------------------------------------
Redemption..........................................................62
----------
Section 12.5 Mandatory and Optional Sinking Funds....................................62
------------------------------------
</TABLE>
v
<PAGE>
THIS INDENTURE, dated as of between OHIO CASUALTY
----------------
CORPORATION, an Ohio corporation (the "Issuer"), and Chase Manhattan Trust
Company, National Association, a national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms (except as
---------------------
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933 (except as herein otherwise expressly provided or
unless the context otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act of 1939 and in said Securities Act as
in force at the date of this Indenture. All accounting terms used herein and
not expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the term
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means such accounting principles as
are generally accepted at the time of any computation. The words "HEREIN",
"HEREOF" and "HEREUNDER" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
1
<PAGE>
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"AUTHENTICATING AGENT" shall have the meaning set forth in Section
6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in
the official language of the country of publication or in the English language
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law, executive order or regulation
to close.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"CONSOLIDATED TOTAL ASSETS" means, in respect of the Issuer as of any
date of determination, the amount of total assets shown on the consolidated
balance sheet of the Issuer and its consolidated subsidiaries contained in the
most recent annual or quarterly report filed with the Commission, or if the
Issuer is not then subject to the Securities Exchange Act of 1934, the most
recent annual or quarterly report to stockholders and, in respect of any
Subsidiary as of any date of determination, the amount of total assets of such
Subsidiary and its consolidated subsidiaries from which such consolidated
balance sheet of the Issuer and its consolidated Subsidiaries was derived.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at Chase Financial Tower, 250 West Huron Road,
Suite 220, Cleveland, Ohio 44113.
"COUPON" means any interest coupon appertaining to an Unregistered
Security.
2
<PAGE>
"COVENANT DEFEASANCE" shall have the meaning set forth
in Section 10.5.
"DEFEASANCE" shall have the meaning set forth in Section 10.4.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in global form, the Person designated as Depositary by the
Issuer pursuant to Section 2.3 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"DEPOSITARY" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "DEPOSITARY"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Securities in global form of that
series.
"DOLLAR" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of European Communities.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"FAIR VALUE" when used with respect to any Voting Stock means the fair
value as determined in good faith by the Board of Directors of the Issuer.
"FOREIGN CURRENCY" means a currency issued by the government of a
country other than the United States.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean (a) in the case of any Registered Security, the person in whose
name such Security is registered in the security register kept by the Issuer
for that purpose in accordance with the terms hereof, and (b) in the case of
any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section 5.1.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"INSURANCE SUBSIDIARY" means a Subsidiary registered in the state of
its domicile under the insurance laws of such state and qualified to sell
insurance products.
"ISSUER" means (except as otherwise provided in Article VI) Ohio
Casualty Corporation, an Ohio corporation and, subject to Article IX, its
successors and assigns.
3
<PAGE>
"ISSUER ORDER" means a written statement, request or order of the
Issuer signed in its name by the chairman or vice chairman of the Board of
Directors, the president, any executive, senior or other vice president or
the treasurer of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section 11.12.
"OFFICER'S CERTIFICATE" means a certificate signed by the chairman or
vice chairman of the Board of Directors, the president or any executive, senior
or other vice president or the treasurer of the Issuer and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by the General
Counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall comply with Section 314 of the Trust Indenture Act of 1939
and include the statements provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (1) the date of such Security or (2) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly)
on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE 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 5.1.
"OUTSTANDING" (except as otherwise provided in Sections 7.4, 10.4 and
10.5), when used with reference to Securities, shall, subject to the provisions
of Sections 7.4, 10.4 and 10.5 mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.1)
in the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent), PROVIDED that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided,
or provision satisfactory to the Trustee shall have been made for giving such
notice; and
(3) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is
4
<PAGE>
held by a person in whose hands such Security is is a legal, valid and
binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"PERMITTED LIENS" means liens for taxes or assessments or governmental
charges or levies not then due and delinquent or the validity of which is
being contested in good faith or which are less than $1,000,000 in amount and
liens created by or resulting from any litigation or legal proceeding which
is currently being contested in good faith by appropriate proceedings or which
involves claims of less than $1,000,000.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, (whether or not designated by numbers or words added before or
after the title "VICE PRESIDENT") the cashier, the secretary, the treasurer,
any trust officer, any assistant trust officer, any assistant vice president,
any assistant cashier, any assistant secretary, any assistant treasurer, or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall
5
<PAGE>
be such officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the
particular subject.
"RESTRICTED SUBSIDIARY" means (1) so long as they are Subsidiaries of
the Issuer, West American Insurance Company, Ohio Security Insurance Company,
The Ohio Casualty Insurance Company and American Fire and Casualty Company;
(2) any other future or present Insurance Subsidiary the Consolidated Total
Assets of which constitute 20 percent or more of the Consolidated Total
Assets of the Issuer; and (3) any Subsidiary which is a successor, by merger
or otherwise, to substantially all of the business or properties of any
Insurance Subsidiary referred to or described in the foregoing clauses (1) or
(2).
"SECURITY" or "SECURITIES" (except as otherwise provided in Section
7.4) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
"SUBSIDIARY" means any corporation, partnership or other entity of
which at the time of determination the Issuer owns or controls directly or
indirectly more than 50% of the shares of Voting Stock.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the date as
of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also 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 the Securities of such series.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed by the
full faith and credit of the United States of America which, in either case,
are not callable or redeemable at the option of the issuer thereof or
otherwise subject to prepayment, and shall also include a depository receipt
issued by a New York Clearing House bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment or
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt or
from any amount held by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
6
<PAGE>
"VOTING STOCK" means stock of any class or classes having general
voting power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, PROVIDED that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
"YIELD TO MATURITY" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series,
and calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section 2.1 Forms Generally. The Securities of each series and
---------------
the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment) or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons. If temporary Securities of any
series are issued as permitted by Section 2.11, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and Coupons, if any, of the series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with
an appropriate record of any such action taken pursuant thereto, including a
copy of the approved form of Securities or Coupons, if any, shall be certified
by the Secretary or an Assistant Secretary of the Issuer and delivered to the
Trustee at or prior to the delivery of the Issuer Order contemplated by Section
2.4 for the authentication and delivery of such Securities.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such Securities
and Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The
-----------------------------------------------
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within mentioned
Senior Indenture.
--------------------------,
7
<PAGE>
as Trustee
By
-------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within mentioned
Senior Indenture.
--------------------------,
as Authenticating Agent
By
-------------------------
Authorized Signatory"
Section 2.3 Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and PARI PASSU with all other unsecured and unsubordinated
debt of the Issuer. There shall be established in or pursuant to one or more
Board Resolutions (and to the extent established pursuant to rather than set
forth in a Board Resolution, in an Officer's Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amountm of the
Securities of the 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 Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall accrue,
on which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
8
<PAGE>
Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.2);
(7) the right, if any, of the Issuer to redeem Securities, in whole
or in part, at its option and the period or periods within which, the price or
prices at which and any terms and conditions upon which Securities of the
series may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of
that series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder thereof, in
a coin or currency other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon which, such
election may be made;
(13) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on
a coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities or Unregistered Securities (with or without Coupons), and
whether such Securities will be issuable in global form or any combination of
the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest thereon and,
if other than as provided in Section 2.8, the terms upon and locations at
which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
9
<PAGE>
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is not
a U.S. person in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any Trustees, Depositaries, Authenticating Agents, paying or
transfer Agents or Registrars or any other agents with respect to the
Securities of such series;
(18) any deletions from, modifications of or additions to the Events
of Default or covenants with respect to the Securities of such series;
(19) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(20) the date as of which any Unregistered Securities of the series
and any temporary Security in global form representing Outstanding Securities
of the series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(21) the applicability, if any, to the Securities of or within the
series of Article X, or such other means of Defeasance or Covenant Defeasance
as may be specified for the Securities and Coupons, if any, of such series;
(22) if the Securities of the series shall be issued in whole or in
part in global form (a) the Depositary for such global Securities, (b) the form
of any legend in addition to or in lieu of that in Section 2.4 which shall be
borne by such global security, (c) whether beneficial owners of interests in
any Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any authorized form
and denomination, and (d) if other than as provided in Section 2.8, the
circumstances under which any such exchange may occur; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may
pursuant to the Board Resolution or Officer's Certificate be issued from time
to time, consistent
10
<PAGE>
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officer's Certificate or in any such indenture supplemental
hereto.
Section 2.4 Authentication and Delivery of Securities. (1) The
-------------------------------------------
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in
this Section) or pursuant to such procedures acceptable to the Trustee and to
such recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral electronic instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed in writing.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in the case of subparagraphs 2, 3 and 4 below only at or
before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(a) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not to
be delivered to the Issuer, PROVIDED that, with respect to Securities of a
series subject to a Periodic Offering, (i) such Issuer Order may be delivered
by the Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (ii) the Trustee shall authenticate
and deliver Securities of such series for original issue from time to time, in
an aggregate principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to time by
an Issuer Order, (iii) the maturity date or dates, original issue date or
dates, interest rate or rates and any other terms of Securities of such series
shall be determined by an Issuer Order or pursuant to such procedures and (iv)
if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Issuer or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing;
(b) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officer's Certificate setting forth the form or forms and
terms of the Securities and Coupons, if any, stating that the form or forms
and terms of the Securities and Coupons, if any, have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request; and
11
<PAGE>
(d) At the option of the Issuer, either one or more Opinions of
Counsel, or a letter addressed to the Trustee permitting it to rely on one or
more Opinions of Counsel, substantially to the effect that:
(i) the forms of the Securities and Coupons, if any, have
been duly authorized and established in conformity with the provisions of this
Indenture;
(ii) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been established pursuant to
a Board Resolution, an Officer's Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the Issuer and
will have been established in conformity with the provisions of this Indenture;
and
(iii) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture, will
be entitled to the benefits of this Indenture, and will be valid and binding
obligations of the Issuer, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration, if any, and the availability of equitable remedies may
be limited by equitable principles of general applicability.
In rendering such opinions, any counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely upon opinions of other counsel (copies of which shall be
delivered to the Trustee), who shall be counsel reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes he or
she and the Trustee are entitled so to rely. Such counsel may also state that,
insofar as such opinion involves factual matters, he or she has relied, to the
extent he or she deems proper, upon certificates of officers of the Issuer and
its subsidiaries and certificates of public officials.
(2) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or
otherwise.
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(3) If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in whole or in part in global form,
then the Issuer shall execute and the Trustee shall, in accordance with this
Section and the Issuer Order with respect to such series, authenticate and
deliver one or more Securities in global form that (a) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued and not yet canceled, (b) if such
Securities are Registered Securities, shall be registered in the name of the
Depositary for such Security or Securities in global form or the nominee of
such Depositary, (c) if such Securities are Registered Securities, shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (d) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
(4) Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
Section 2.5 Execution of Securities. The Securities and, if
-----------------------
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman or vice chairman of its Board of Directors or its
president or any executive, senior or other vice president or its treasurer,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. Typographical and
other minor errors or defects in any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such Securities as
-----------------------------
shall bear thereon a certificate of authentication substantially in the form
herein before recited, executed by the Trustee by the manual signature of one
of its authorized officers, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and obligatory
for any purpose until the certificate of authentication on the Security to
which such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
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Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
Section 2.7 Denomination and Date of Securities; Payments of
------------------------------------------------
Interest. The Securities of each series shall be issuable as Registered
- --------
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business
on a subsequent record date (which shall be not less than five Business Days
prior to the date of payment of such defaulted interest) established by notice
given by mail by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Registered Securities of
such series established as contemplated by Section 2.3, or, if no such date is
so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day
of such calendar month, whether or not such record date is a Business Day.
Section 2.8 Registration, Transfer and Exchange. (1) The Issuer
-----------------------------------
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register or registers in
which, subject to such reasonable regulations as it may prescribe, it will
provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form
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within a reasonable time. At all reasonable times such register or registers
shall be open for inspection by the Trustee.
(2) Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities in global form) and Coupons (except for Coupons attached to any
temporary Unregistered Securities in global form) shall be transferable by
delivery.
(3)(a) At the option of the Holder thereof, Registered Securities
of any series (other than a Registered Security in global form, except as set
forth below) may be exchanged for a Registered Security or Registered
Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Registered Securities
to be exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. Whenever any Registered
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
(b) Unless otherwise specified as contemplated by Section
2.3, at the option of the Holder, Unregistered Securities of such series may be
exchanged for Registered Securities (if the Securities of such series are
issuable in registered form) or Unregistered Securities (if Unregistered
Securities of such series are issuable in more than one denomination and such
exchanges are permitted by such series) 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 the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of an Unregistered Security is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such exchange may be effected
if the Unregistered Securities are accompanied by payment in funds acceptable
to the Issuer and the Trustee in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Issuer and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless. If thereafter the Holder of such Security shall surrender to
any paying agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment as provided in Section 3.2. Notwithstanding the foregoing in,
case any Unregistered Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series
after the close of business at such office or agency on (i) any record date
and before the opening of business at such office or agency on the relevant
interest payment date, or (ii) any special record date for payment of defaulted
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<PAGE>
interest and before the opening of business at such office or agency on the
related date for payment of defaulted interest, such Unregistered Security
shall be surrendered without the Coupon relating to such interest or defaulted
interest payment date or proposed date of payment, as the case may be (or, if
such Coupon is so surrendered with such Unregistered Security, such Coupon
shall be returned to the person so surrendering the Unregistered Security), and
interest or defaulted interest, as the case may be, will not be payable on such
date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Unregistered Security, but will
be payable only to the Holder of such Coupon, when due in accordance with the
provisions of this Indenture.
(c) Registered Securities of any series may not be exchanged
for Unregistered Securities of such series unless (i) otherwise specified
pursuant to Section 2.3 and (ii) the Issuer has delivered to the Trustee an
Opinion of Counsel that (A) the Issuer has received from the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that the
inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no adverse Federal income tax effect
to the Issuer or to any Holder. Whenever any Securities are so surrendered
for exchange, the Issuer shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled
to receive. All Securities and Coupons surrendered upon any exchange or
transfer provided for in this Indenture shall be canceled promptly and
disposed of by the Trustee and the Trustee will deliver a certificate of
disposition thereof to the Issuer.
(4) All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
(5) Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or
by a nominee of such Depositary to such Depository or another nominee or such
Depository or by such Depository
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or any such nominee to a successor Depositary for such series or a nominee of
suchsuccessor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Securities in global form
notifies the Issuer that it is unwilling or unable to continue as Depositary
for such Registered Securities or if at any time the Depositary for such
Registered Securities shall no longer be eligible under Section 2.4, the Issuer
shall appoint a successor Depositary eligible under Section 2.4 with respect to
such Registered Securities. If a successor Depositary eligible under Section
2.4 for such Registered Securities is not appointed by the Issuer within 90
days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Securities in
global form shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Security or Securities in
global form representing such Registered Securities in exchange for such
Registered Security or Securities in global form.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Registered Securities in global form shall no longer be represented by a
Registered Security or Securities in global form. In such event the Issuer
will execute, and the Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Security or
Securities in global form representing such Registered Securities, in exchange
for such Registered Security or Securities in global form.
If specified by the Issuer pursuant to Section 2.3 with respect
to Securities represented by a Registered Security in global form, the
Depositary for such Registered Security in global form may surrender such
Registered Security in global form in exchange in whole or in part for
Registered Securities of the same series in definitive form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(a) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Registered Security in global form; and
(b) to such Depositary a new Registered Security in global
form in a denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Security in global form and the
aggregate principal amount of Registered Securities authenticated and delivered
pursuant to clause (a) above.
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Upon the exchange of a Registered Security in global form for
Registered Securities in definitive form without Coupons, in authorized
denominations, such Registered Security in global form shall be canceled by
the Trustee or an agent of the Issuer or the Trustee. Registered Securities in
definitive form issued in exchange for a Registered Security in global form
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Security in
global form, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
(6) All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(7) Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such as,
for example, the inability of the Issuer to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
----------------------------------------------
Securities. In case any Security or any Coupon appertaining to any Security
- ----------
shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for
a substitute Security or Coupon shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the
Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer 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) or its
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agent connected therewith. In case any Security or Coupon which has matured
or is about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead
of issuing a substitute Security, pay or authorize the payment of the same or
the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as any of them may require to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10 Cancelation of Securities; Destruction Thereof. All
-----------------------------------------------
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be
canceled by it; and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee or its agent shall dispose of canceled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If the Issuer or
its agent shall acquire any of the Securities or Coupons, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same are
delivered to the Trustee or its agent for cancelation.
Section 2.11 Temporary Securities. Pending the preparation of
-------------------
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may
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contain such references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for
that purpose pursuant to Section 3.2 and, in the case of Unregistered
Securities, at any agency maintained by the Issuer for such purpose as
specified pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series, unless otherwise established
pursuant to Section 2.3. The provisions of this Section are subject to any
restrictions or limitations on the issue and delivery of temporary Unregistered
Securities of any series that may be established pursuant to Section 2.3
(including any provision that Unregistered Securities of such series initially
be issued in the form of a single Unregistered Security in global form to be
delivered to a Depositary or agency located outside the United States and the
procedures pursuant to which Unregistered Securities in definitive or global
form of such series would be issued in exchange for such temporary Unregistered
Security in global form).
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal, Premium and Interest. The
------------------------------------------
Issuer covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the principal of, and
premium, if any, and interest on, each of the Securities of such series
(together with any additional amounts payable pursuant to the terms of such
Securities) at the place or places, at the respective times and in the manner
provided in such Securities and in the Coupons, if any, appertaining thereto
and in this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby as
they severally mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary form, the
interest on any such temporary Unregistered Security (together with any
additional amounts payable pursuant to the terms of such Security) shall be
paid, as to the installments of interest evidenced by Coupons attached thereto,
if any, only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Securities for
notation thereon of the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.3. The interest on
Registered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only to or upon the written
order of the Holders thereof and, at the option of the Issuer, may be paid by
wire transfer or by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
20
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Section 3.2 Offices for Payments, Etc. So long as any Securities
-------------------------
are issued as Registered Securities, the Issuer will maintain in the Borough of
Manhattan, the City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities of
each series may be presented for exchange as is provided in this Indenture and,
if applicable, pursuant to Section 2.3 and where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture
provided.
So long as any Securities are issued as Unregistered Securities, the
Issuer will maintain one or more offices or agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if
any, of each series and Coupons, if any, appertaining thereto may be presented
for payment. No payment on any Unregistered Security or Coupon will be made
upon presentation of such Unregistered Security or Coupon at an agency of the
Issuer within the United States nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such payment can
be made without adverse tax consequences to the Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in the Borough of Manhattan, the City of New
York, if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer will maintain in the Borough of Manhattan, the City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section, or shall
fail to give such notice of the location or of any change in the location of
any of the above agencies, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the
Trustee prompt written notice of any such designation or rescission thereof.
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Section 3.3 Money for Security Payments to be Held in Trust;
-----------------------------------------------
Unclaimed Money. If the Issuer shall at any time act as its own paying agent,
- ---------------
it will, on or before each due date of the principal of and premium, if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Holders or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more paying agents, it will, on
or prior to each due date of the principal of and premium, if any, or interest
on any Securities, deposit with the paying agent or paying agents a sum
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held in trust for the benefit of the Holders entitled to such
principal, premium, if any, or interest, and, unless such paying agent is the
Trustee, the Issuer will promptly notify the Trustee of its action or failure
so to act.
The Issuer will cause each paying agent 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:
(1) hold all sums held by it for the payment of the principal of and
premium, if any, or interest on Securities in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Holders (or any
other obligor upon the Securities) in the making of any payment of principal
and premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any paying agent to pay, to the Trustee all sums held in
trust by the Issuer 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 Issuer or
such paying agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any paying agent, or then held
by the Issuer in trust for the payment of the principal of and premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall be
paid to the Issuer on Issuer Order, or, if then held by the Issuer, shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Issuer for payment thereof,
and all liability of the Trustee or such paying agent with respect to such
trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such paying agent,
-------- -------
before being required to make any such repayment, may at the expense of the
Issuer cause
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to be published at least once, in an Authorized Newspaper in the Borough of
Manhattan, the City of New York, and at least once in an Authorized
Newspaper in London, 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 Issuer.
Section 3.4 Statements of Officers of Issuer as to Default; Notice
------------------------------------------------------
of Default. (1) The Issuer will deliver to the Trustee, within 120 days after
- ----------
the end of each fiscal year of the Issuer ending after the date hereof, a
certificate, signed by the principal executive officer, principal financial
officer or principal accounting officer, stating whether or not to the best
knowledge of the signers thereof the Issuer is in default (without regard to
periods of grace or requirements of notice) in the performance and observance
of any of the terms, provisions and conditions hereof, and if the Issuer shall
be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
(2) The Issuer shall file with the Trustee written notice of the
occurrence of any default or Event of Default within five Business Days of its
becoming aware of any such default or Event of Default.
Section 3.5 Existence. Subject to Article IX, the Issuer will do
---------
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises and those
of each of its Subsidiaries; PROVIDED, HOWEVER, that the Issuer shall not be
-------- -------
required to preserve any such right or franchise if its Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuer or the business of any Subsidiary and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 3.6 Maintenance of Properties. The Issuer will cause all
-------------------------
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section shall
-------- -------
prevent the Issuer from discontinuing the operation or maintenance of any such
properties if such discontinuance is, in the judgment of the Issuer, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
Section 3.7 Payment of Taxes and Other Claims. The Issuer shall
---------------------------------
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon the Issuer or any Subsidiary or upon the income,
profits or property of the Issuer or any Subsidiary, 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 Issuer or any Subsidiary;
PROVIDED, HOWEVER, that the Issuer shall not be required to pay or discharge or
- -------- -------
23
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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 disputed amounts adequate reserves have
been made.
Section 3.8 Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Issuer will execute and deliver such further instruments and
perform such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
Section 3.9 Limitation on Liens. The Issuer and its Restricted
-------------------
Subsidiaries may not issue, assume, incur or guarantee any indebtedness for
borrowed money secured by a mortgage, pledge, lien or other encumbrance,
directly or indirectly, upon any shares of the Voting Stock of a Restricted
Subsidiary which shares are owned by the Issuer or its Restricted
Subsidiaries without effectively providing that the Securities (and if the
Issuer so elects, any other indebtedness of the Issuer ranking on a parity with
the Securities) shall be secured equally and ratably with, or prior to, any
such secured indebtedness so long as such indebtedness remains outstanding.
This Section 3.9 shall not apply to Permitted Liens upon any shares of Voting
Stock of any corporation existing at the time such corporation becomes a
Restricted Subsidiary and any extensions, renewals or replacements thereof.
Section 3.10 Luxembourg Publications. In the event of the
-----------------------
publication of any notice pursuant to Section 3.3, 5.11, 6.10, 6.11, 8.2 or
12.2, the party making such publication in the Borough of Manhattan, the City
of New York and London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable Luxembourg law or
stock exchange regulation, as evidenced by an Officer's Certificate delivered
to such party, make a similar publication in Luxembourg.
Section 3.11 Commission Reports. The Issuer shall file with the
------------------
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the Commission, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. The
Trustee shall be under no obligation to analyze or make any credit decisions
with respect to reports or other information received by it pursuant to this
section, but shall hold such reports and other information solely for the
benefit of, and review by, the security holders.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and
-----------------------------------------------------
Addresses of Securityholders. If and so long as the Trustee shall not be the
- ----------------------------
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant
to Section 312
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of the Trust Indenture Act of 1939 (1) semi-annually not more
than 5 days after each record date for the payment of interest on such
Registered Securities, as hereinabove specified, as of such record date and
on dates to be determined pursuant to Section 2.3 for non-interest bearing
Registered Securities in each year, and (2) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
Section 4.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
(1) 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 4.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar or paying agent. The Trustee may destroy any list furnished to it as
provided in Section 4.1 upon receipt of a new list so furnished.
(2) 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 by the
Trust Indenture Act of 1939.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of any of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Sections 4.1 and 4.2(2), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 4.2(2).
Section 4.3 Reports by the Trustee. Any Trustee's report required
----------------------
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted
within 60 days after May 15 in each year beginning May 15, , as provided in
----
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities
are Outstanding hereunder, and shall be dated as of May 15, if required by and
in compliance with Section 313(a) of the Trust Indenture Act of 1939.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity;
---------------------------------------------------
Waiver of Default. "Event of Default" with respect to Securities of any series
- -----------------
wherever used herein, means each one of the following events which shall have
occurred and be continuing (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):
(1) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
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<PAGE>
(2) default in the payment of all or any part of the principal of,
or premium, if any, on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon any redemption, by
declaration or otherwise; or
(3) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the Securities of
such series; or
(4) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer in the
Securities of such series (other than a covenant or agreement in respect of the
Securities of such series a default in the performance or breach of which is
elsewhere in this Section specifically dealt with) or contained in this
Indenture (other than a covenant or agreement included in this Indenture
solely for the benefit of a series of Securities other than such series) for a
period of 60 days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" hereunder and
demanding that the Issuer remedy the same, shall have been given by registered
or certified mail, return receipt requested, to the Issuer by the Trustee, or
to the Issuer and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all series affected thereby;
or
(5) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Issuer or any Restricted
Subsidiary as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Issuer or any Restricted Subsidiary under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, and such decree or order shall have continued undischarged and unstayed
for a period of 120 days; or a decree or order of a court having jurisdiction
in the premises for the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of the Issuer or any Restricted Subsidiary
or of its or their property, or for the winding up or liquidation of its or
their affairs, shall have been entered, and such decree or order shall have
remained in force and unstayed for a period of 120 days; or
(6) the Issuer or any Restricted Subsidiary shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or any Restricted Subsidiary
or for any substantial part of its or their property, or make any general
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its or their respective debts generally as they become due; or
(7) an event of default, as defined in any one or more mortgages,
indentures, instruments, bonds, debentures, notes or other similar instruments
under which there may be issued, or by which there may be secured or evidenced,
any indebtedness (other than the Securities of such series or nonrecourse
obligations) ("Indebtedness") in excess of $10,000,000 for money borrowed by
the Issuer or a Restricted Subsidiary shall occur, if such event of default
shall result in the acceleration of such Indebtedness prior to its expressed
maturity unless such
26
<PAGE>
Indebtedness is discharged or such acceleration is cured, waived, rescinded or
annulled within 10 days after written notice thereof shall have been given by
registered or certified mail, return receipt requested, to the Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities (treated as one
class) which notice shall state that it is a "Notice of Default" hereunder;
or
(8) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the form of
Security for such series; PROVIDED that if any such default or acceleration
referred to in clause (7) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon cured.
If an Event of Default described in clause (1), (2), (3), (4) or (8)
(if the Event of Default under clause (4) or (8), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (4) or (8) (if the Event of Default under
clause (4) or (8), as the case may be, is with respect to all series of
Securities then Outstanding) or (7) occurs and is continuing, then and in each
and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable. If an Event of Default specified in clause (5) or (6) occurs,
all unpaid principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding, and interest accrued thereon,
if any, shall be due and payable immediately, without any declaration or other
act on the part of the Trustee or any Securityholder.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all matured installments of interest upon all the Securities of such series
(or of all the Securities, as the case may be) and the principal of any and
all Securities of each such series (or of all the Securities, as
27
<PAGE>
the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
each such series (or at the respective rates of interest or Yields to Maturity
of all the Securities, as the case may be) to the date of such payment or
deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee May
--------------------------------------------------
Prove Debt. (1) The Issuer covenants that (a) in case default shall be made
- ----------
in the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise, then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due and payable on all
Securities of such series, and such Coupons, for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and
each predecessor
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Trustee, their respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such series be overdue.
(2) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated
the moneys adjudged or decreed to be payable.
(3) In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) owing and unpaid in respect of
the Securities of any series, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the Securities, or to
the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
29
<PAGE>
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee
on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(4) All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of
any of such Securities or Coupons or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
(5) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by the
-----------------------
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their respective
agents and attorneys and of all expenses and liabilities
30
<PAGE>
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series
in default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest
upon the overdue principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or priority of
principal over interest or Yield to Maturity, or of interest or Yield to
Maturity over principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
Section 5.4 Suits for Enforcement. In case an Event of Default has
---------------------
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of Proceedings.
---------------------------------------------------
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and in
every such case the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No Holder of
---------------------------------------
any Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any
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provision of this Indenture to institute any action or proceeding at law or
in equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of each affected series then Outstanding
(treated as a single class) shall have made written request upon the
Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action
or proceeding and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security or Coupon with every other taker and Holder and the Trustee, that no
one or more Holders of Securities of any series or Coupons appertaining to such
Securities shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights
of any other such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to Institute
---------------------------------------------------
Certain Suits. Notwithstanding any other provision in this Indenture and any
- -------------
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not
-----------------------------------------------------
Waiver of Default. Except as provided in Section 5.6, no right or remedy
- -----------------
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy
given by this Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised
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from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Holders of Securities or Coupons.
Section 5.9 Control by Holders of Securities. The Holders of a
--------------------------------
majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding 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 by this Indenture; PROVIDED that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture, PROVIDED FURTHER that (subject to the provisions of Section 6.1) the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the acceleration of
-----------------------
the maturity of any Securities as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which an Event of Default shall have occurred
and be continuing (voting as a single class) may on behalf of the Holders of
all such Securities waive any past default or Event of Default described in
Section 5.1 and its consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the Issuer,
the Trustee and the Holders of all such Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 5.11 Trustee to Give Notice of Default, but May Withhold in
------------------------------------------------------
Certain Circumstances. The Trustee shall, within ninety days after the
- ---------------------
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known
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to the Trustee (1) if any Unregistered Securities of that series are then
Outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, the City of New York and at
least once in an Authorized Newspaper in London (and,if required by Section
3.10, at least once in an Authorized Newspaper in Luxembourg) and (2) to all
Holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act of 1939, unless in each case such
defaults shall have been cured before the mailing or publication of such notice
(the term "defaults" for the purpose of this Section being hereby defined to
mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); PROVIDED that, except in the case of
default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking fund
installment on such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such series.
Section 5.12 Right of Court to Require Filing of Undertaking to Pay
------------------------------------------------------
Costs. All parties to this Indenture agree, and each Holder of any Security or
- -----
Coupon by 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, 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 Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the
case of any suit relating to or arising under clause (4) or (8) of Section 5.1
(if the suit relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (4) or
(8) (if the suit under clause (4) or (8) relates to all the Securities then
Outstanding), (5), (6) or (7) of Section 5.1, 10% in aggregate principal amount
of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During
--------------------------------------------------
Default; Prior to Default. (1) With respect to the Holders of any series of
- -------------------------
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities of a series has occurred (which has not
been cured or waived) the Trustee shall exercise with
34
<PAGE>
respect to such series of Securities such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(2) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
(d) the Trustee shall not be required to take notice, and
shall not be deemed to have notice, of any default or Event of Default
hereunder, except Events of Default described in paragraphs (1), (2) and (3) of
Section 5.1 hereof, unless the Trustee shall be notified specifically of the
default or Event of Default on a written instrument or document delivered to it
at its notice address by the Issuer or by the Holders of at least 10% of the
aggregate principal amount of Securities then outstanding. In the absence of
delivery of notice satisfying those requirements, the Trustee may assume
conclusively that there is no default or Event of Default, except as noted.
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<PAGE>
(3) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
Section 6.2 Certain Rights of the Trustee. In furtherance of and
-----------------------------
subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, 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;
(2) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(3) the Trustee may consult with legal counsel of its choice or
other experts, and the advice of such experts within the scope of such expert's
area of expertise or opinion of counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion.
(4) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(5) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(6) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority
36
<PAGE>
in aggregate principal amount of the Securities of all series affected by such
Event of Default and then Outstanding; PROVIDED that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand; and
(7) 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 such agent or attorney appointed with due care
by it hereunder.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of
----------------------------------------------------
Securities or Application of Proceeds Thereof. The recitals contained herein
- ---------------------------------------------
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of any
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
Section 6.4 Trustee and Agents May Hold Securities or Coupons;
--------------------------------------------------
Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in
- ----------------
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions of
----------------------
Section 3.3 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest
on any moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and its
---------------------------------------------------
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
- -----------
to time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith.
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The Issuer also covenants to indemnify the Trustee, each predecessor Trustee
and their respective directors, officers, employees, and agents (the
"indemnitees") for, and to hold the indemnitees harmless against, any loss,
liability, claim, damage, penalty, fine or expense, including reasonable
out-of-pocket expenses, reasonable incidental expenses and reasonable legal
fees incurred without negligence or bad faith on the indemnitees' part, arising
out of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder and the indemnitees' duties hereunder, including the
costs and expenses of defending themselves against or investigating any claim
of liability in connection with the exercise or performance of the
indemnitiees' duties or obligations hereunder. The obligations of the Issuer
under this Section to compensate and indemnify the indemnitees and to pay or
reimburse the indemnitees for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim.
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc.
-------------------------------------------------------
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer's Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
Section 6.8 Indentures Not Creating Potential Conflicting Interests
-------------------------------------------------------
for the Trustee. The following indentures are hereby specifically described
- ---------------
for the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939:
this Indenture with respect to the Securities of any series.
Section 6.9 Persons Eligible for Appointment as Trustee. The
-------------------------------------------
Trustee for each series of Securities hereunder shall at all times be a
corporation or banking association organized and doing business under the laws
of the United States of America or of any State or the District of Columbia
having a combined capital and surplus of at least $5,000,000, and which is
authorized under such laws to exercise corporate trust powers and is subject
to supervision or examination by Federal, State or District of Columbia
authority. Such corporation or banking association shall have a place of
business or an affiliate with a place of business in the Borough of
Manhattan, the City of New York if there be such a corporation or association
in such location willing to act upon reasonable and customary terms and
conditions. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
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The provisions of this Section 6.9 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
Section 6.10 Resignation and Removal; Appointment of Successor
-------------------------------------------------
Trustee. (1) The Trustee, or any trustee or trustees hereafter appointed,
- -------
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer and (a) if
any Unregistered Securities of a series affected are then Outstanding, by
giving notice of such resignation to the Holders thereof, by publication at
least once in an Authorized Newspaper in the Borough of Manhattan, the City of
New York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.10, at least once in an Authorized Newspaper in
Luxembourg), (b) if any Unregistered Securities of a series affected are then
Outstanding, by mailing notice of such resignation to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939 at such addresses as were so
furnished to the Trustee and (c) by mailing notice of such resignation to the
Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
Trustee or Trustees with respect to the applicable series by written instrument
in duplicate, executed by authority of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to
the successor Trustee or Trustees. If no successor Trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor Trustee.
(2) In case at any time any of the following shall occur:
(a) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the Issuer
or by any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months; or
(b) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(c) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged bankrupt or
insolvent, or a receiver or liquidator 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;
39
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then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a successor
Trustee for such series by written instrument, in duplicate, executed by order
of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939,
any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months may on behalf of himself or herself and
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee with
respect to such series. Such court may thereupon, after such notice, if any,
as it may deem proper, remove the Trustee and appoint a successor Trustee.
(3) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by such
Securityholders.
(4) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor Trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor Trustee as provided in Section
6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee.
-----------------------------------------------
Any successor Trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor Trustee,
upon payment of its charges then unpaid, the Trustee ceasing to act shall,
subject to Section 3.3, pay over to the successor Trustee all moneys at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the
40
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predecessor Trustee, and 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 under separate indentures.
No successor Trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be qualified under Section 310(b) of
the Trust Indenture Act of 1939 and eligible under the provisions of Section
6.9.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the Issuer shall give notice thereof (1) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof,
by publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, the City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.10, at least once in an
Authorized Newspaper in Luxembourg), (2) if any Unregistered Securities
of a series affected are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939, by mailing such notice to
such Holders at such addresses as were so furnished to the Trustee
(and the Trustee shall make such information available to the Issuer
for such purpose) and (3) if any Registered Securities of a series affected
are then Outstanding, to the Holders thereof, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If
the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be given
at the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED that such
corporation shall be qualified under Section 310(b) of the Trust Indenture
Act of 1939 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have;
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PROVIDED, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
-----------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship listed in Section 311(b) of the
Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
Section 6.14 Appointment of Authenticating Agent.
------------------------------------
As long as any Securities of a series remain Outstanding, the Trustee may, by
an instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of the Trustee to authenticate Securities, including Securities
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by
the Trustee. Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the Trustee or to
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 for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $5,000,000 (determined as provided in
Section 6.9 with respect to the Trustee) and subject to supervision or
examination by Federal or State authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order
appoint a successor Authenticating Agent and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Issuer agrees
to pay to the Authenticating Agent for such series from time to time
reasonable compensation. The
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Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. Any
--------------------------------------------
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article.
Section 7.2 Proof of Execution of Instruments and of Holding
------------------------------------------------
of Securities. Subject to Sections 6.1 and 6.2, the execution of any
- -------------
instrument by a Securityholder or his or her agent or proxy may be proved in
the following manner:
(1) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him or her the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where such
execution is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same.
(2) The fact of the holding by any Holder of an Unregistered
Security of any series, and the identifying number of such Security and the
date of his or her holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee, if
such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer
by the person named in such certificate. Any such certificate may be issued
in respect of one or more Unregistered Securities of one or more series
specified therein. The holding by the person named in any such
certificate of any Unregistered Securities of any series specified therein
shall be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding
(a) another certificate bearing a later date issued in respect of the same
Securities shall be produced, or (b) the Securities of such series
specified in such certificate shall be produced by some other person, or
(c) the Securities of
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such series specified in such certificate shall have ceased to be Outstanding.
Subject to Sections 6.1 and 6.2, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by the
person so executing such instrument and the amount and numbers of any Security
or Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such series may deem
sufficient.
(3) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of
the Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to
vote or consent to any action referred to in Section 7.1, which record date
may be set at any time or from time to time by notice to the Trustee, for any
date or dates (in the case of any adjournment or reconsideration) not more
than 60 days nor less than five days prior to the proposed date of such vote
or consent, and thereafter, notwithstanding any other provisions hereof, with
respect to Registered Securities of any series, only Holders of Registered
Securities of such series of record on such record date shall be entitled to
so vote or give such consent or revoke such vote or consent.
Section 7.3 Holders to Be Treated as Owners.
--------------------------------
The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem
and treat the person in whose name any Security shall be registered upon the
Security register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other purposes; and
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be affected by any notice to the contrary. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may treat the Holder of any Unregistered
Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security or
Coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes and neither the Issuer, the Trustee,
nor any agent of the Issuer or the Trustee shall be affected by any notice to
the contrary. All such payments so made to any such person, or upon his or her
order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such
Unregistered Security or Coupon.
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding.
-------------------------------------------------
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in
any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only
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Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly
an Officer's Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee
shall be entitled to accept such Officer's 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.
Section 7.5 Right of Revocation of Action Taken. At any time
------------------------------------
to (but not after) the evidencing to the Trustee, as provided in Section 7.1,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far
as concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with
such action shall be conclusively binding upon the Issuer, the Trustee and
the Holders of all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
------------------------------------------
Securityholders. (1) The Issuer, when authorized by a resolution of its Board
- ---------------
of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto, which comply with the Trust Indenture Act of 1939, as
then in effect, for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property or
assets;
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(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article IX;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of Securities
or Coupons, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth;
PROVIDED, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available
to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may deem
necessary or desirable, PROVIDED that no such action shall adversely affect
the interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3; and
(f) 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.
(2) The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
(3) Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 Supplemental Indentures With Consent of
---------------------------------------
Securityholders. (1) With the consent (evidenced as provided in Article VII)
of the Holders of not less than a majority in
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aggregate principal amount of the Securities at the time Outstanding of all
series affected by such supplemental indenture (voting as one class), the
Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto,
which comply with the Trust Indenture Act of 1939, as then in effect, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each
such series or of the Coupons appertaining to such Securities; PROVIDED, that
no such supplemental indenture shall (a) extend the final maturity of any then
issued Security, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in such Securities and any Coupons thereon or
in accordance with the terms thereof, or reduce the amount of the principal of
a then issued Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 5.1 or the
amount thereof provable in bankruptcy pursuant to Section 5.2, or alter the
provisions of Section 11.11 or 11.12 or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if such Securities
provide therefor, any right of repayment at the option of the Securityholder,
in each case without the consent of the Holder of each Security so affected, or
(b) reduce the percentage in principal amount of then issued Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
(2) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series, or of
Coupons appertaining to such Securities, with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons appertaining
to such Securities.
(3) Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms
of such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
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(4) It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(5) Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (a) if any Registered Securities of a series
affected thereby are then Outstanding, to the Holders thereof by mailing
a notice thereof by first-class mail to such Holders at their addresses as they
shall appear on the Security register, (b) if any Unregistered Securities of
a series affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section 313
(c)(2) of the Trust Indenture Act of 1939, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the
Trustee and (c) if any Unregistered Securities of a series affected thereby are
then Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, the City of
New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.10, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the execution
---------------------------------
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee,
---------------------------------
subject to the provisions of Sections 6.1 and 6.2, shall be entitled to
receive, and shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article VIII complies with
the applicable provisions of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
-------------------------------------------------
Indentures. Securities of any series authenticated and delivered after the
- ----------
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
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Section 8.6 Conformity with Trust Indenture Act of 1939. Every
--------------------------------------------
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act of 1939 as then in effect.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Issuer shall not consolidate with or merge into another Person or sell
other than for cash or lease all or substantially all its assets to another
Person, or purchase all or substantially all the assets of another Person,
unless:
(1) either the Issuer is the continuing Person, or the successor
Person (if other than the Issuer) expressly assumes by supplemental indenture
the obligations evidenced by the Securities (in which case, except in the case
of such a lease, the Issuer will be discharged therefrom), and
(2) immediately thereafter, the Issuer or the successor Person (if
other than the Issuer) would not be in default in the performance of any
covenant or condition contained herein.
Section 9.2 Successor Substituted for the Issuer. Upon any
------------------------------------
consolidation of the Issuer with, or merger of the Issuer into, any other
Person or any conveyance, transfer or lease of the properties and assets of
the Issuer substantially as an entirety in accordance with Section 9.1, the
successor Person formed by such consolidation or into which the Issuer 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 Issuer
under this Indenture with the same effect as if such successor Person had been
named as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Section 9.3 Restrictions on Certain Dispositions. As long as any
-------------------------------------
any of the Securities remain Outstanding, the Issuer will not, and will not
permit any Restricted Subsidiary to, issue, sell, assign, transfer or otherwise
dispose of, directly or indirectly, any of the Voting Stock of any Restricted
Subsidiary, unless:
(1) the issuance, sale, assignment, transfer or other disposition
is required to comply with the order of a court or regulatory authority of
competent jurisdiction, other than an order issued at the request of the
Issuer or of one of its Restricted Subsidiaries;
(2) the shares of Voting Stock issued, sold, assigned, transferred
or otherwise disposed of constitute directors' qualifying shares;
(3) all of the Voting Stock of a Restricted Subsidiary then owned
by the Issuer or by its Restricted Subsidiaries is disposed of in a single
transaction or in a series of related transactions, for a consideration
consisting of cash or other property the fair market value of
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which (as determined in good faith by the Board of Directors) is at least equal
to the Fair Value of such Voting Stock; or
(4) after giving effect to the issuance sale, assignment, transfer
or other disposition, the Issuer and its Restricted Subsidiaries would own
directly or indirectly at least 80% of the issued and outstanding Voting Stock
of such Restricted Subsidiary and such issuance, sale, assignment,
transfer or other disposition is made for a consideration consisting of cash
or other property which is at least equal to the Fair Value of such Voting
Stock.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the
---------------------------------------------
Indenture. (1) This Indenture shall upon an Issuer Order cease to be of
- ---------
further effect with respect to Securities of or within any series and any
Coupons appertaining thereto (except as to any surviving rights of registration
of transfer or exchange of such Securities and replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for)
and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities and any Coupons appertaining thereto when
(a) either
(i) all such Securities previously authenticated
and delivered and all Coupons appertaining thereto (other than
(A) such Coupons appertaining to Unregistered Securities
surrendered in exchange for Registered Securities and maturing
after such exchange, surrender of which is not required or has
been waived as provided in Section 2.8, (B) such Securities
and Coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9,
(C) such Coupons appertaining to Unregistered Securities
called for redemption and maturing after the date fixed for
redemption thereof, surrender of which has been waived as
provided in Section 12.3 and (D) such Securities and Coupons
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust
as provided in Section 3.3) have been delivered to the
Trustee for cancellation; or
(ii) all Securities of such series and, in the
case of (X) or (Y) below, all Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (X) have
become due and payable, or (Y) will become due and payable
within one year, or (Z) if redeemable at the option of the
Issuer, 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 Issuer, and the Issuer, in the case of (X),
(Y) or (Z) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies or currency
unit or
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units in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such Coupons not
theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, with respect
thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or maturity
date or redemption date, as the case may be;
(b) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(c) the Issuer 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 as to such series have been complied with.
(2) Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Issuer to the Trustee and any predecessor
Trustee under Section 6.6, the obligations of the Issuer to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to (1)(a)(ii) of this Section, the
obligations of the Trustee under Section 10.2 and the last paragraph of
Section 3.3 shall survive.
Section 10.2 Application of Trust Funds. Subject to the provisions
---------------------------
of the last paragraph of Section 3.3, all money deposited with the Trustee
pursuant to Section 10.1 shall be held in trustand applied by it, in accordance
with the provisions of the Securities, the Coupons and this Indenture, to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent) as the Trustee may determine, to the Persons
entitled thereto of the principal, premium, if any and any interest for whose
payment such money has been deposited with or received by the Trustee, but
such money need not be segregated from other funds except to the extent
required by law.
Section 10.3 Applicability of Defeasance Provisions; Issuer's
------------------------------------------------
Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section
- ---------------------------------------------------
2.3 provision is made for either or both of (1) defeasance of the Securities of
or within a series under Section 10.4 or (2) covenant defeasance of the
Securities of or within a series under Section 10.5, then the provisions of
such Section or Sections, as the case may be, together with the provisions of
Sections 10.6 through 10.9 inclusive, with such modifications thereto as may
be specified pursuant to Section 2.3 with respect to any Securities, shall be
applicable to such Securities and any Coupons appertaining thereto, and the
Issuer may at its option by or pursuant to Board Resolution, at any time,
with respect to such Securities and any Coupons appertaining thereto, elect
to have Section 10.4 (if applicable) or Section 10.5 (if applicable) be
applied to such Outstanding Securities and any Coupons appertaining thereto
upon compliance with the conditions set forth below in this Article.
Section 10.4 Defeasance and Discharge. Upon the Issuer's exercise
-------------------------
of the option specified in Section 10.3 applicable to this Section with
respect to the Securities of or within a series, the Issuer shall be deemed to
have been discharged from its obligations with respect to such Securities and
any Coupons appertaining thereto on and after the date the conditions set
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forth in Section 10.6 are satisfied (hereinafter "defeasance"). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and any
Coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 10.7 and the other Sections of
this Indenture referred to in clause (2) of this Section, and to have
satisfied all its other obligations under such Securities and any Coupons
appertaining thereto and this Indenture insofar as such Securities and any
Coupons appertaining thereto are concerned (and the Trustee, at the expense
of the Issuer, shall on an Issuer Order execute proper instruments
acknowledging the same), except the following which shall survive until
otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Securities and any Coupons appertaining
thereto to receive, solely from the trust funds described in Section 10.6(1)
and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest, if any, on such Securities or any
Coupons appertaining thereto when such payments are due; (2) the Issuer's
obligations with respect to such Securities under Sections 2.8, 2.9, 3.2 and
3.3 and with respect to the payment of additional amounts, if any, payable with
respect to such Securities as specified pursuant to Section 2.3; (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article X. Subject to compliance with this Article X, the Issuer may
exercise its option under this Section notwithstanding the prior exercise of
its option under Section 10.5 with respect to such Securities and any Coupons
appertaining thereto. Following a defeasance, payment of such Securities may
not be accelerated because of an Event of Default.
Section 10.5 Covenant Defeasance. Upon the Issuer's exercise of
--------------------
of the option specified in Section 10.3 applicable to this Section with
respect to any Securities of or within a series, the Issuer shall be released
from its obligations under Section 9.1 and 3.5 and, if specified pursuant to
Section 2.3, its obligations under any other covenant with respect to such
Securities and any Coupons appertaining thereto on an after the date the
conditions set forth in Section 10.6 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 9.1 and 3.5 or such
other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to such Securities and any Coupons appertaining thereto, the
Issuer may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a
default or an Event of Default under Section 5.1(4) or (8) or otherwise, as
the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any Coupons appertaining thereto shall be
unaffected thereby.
Section 10.6 Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to application of Section 10.4 or
Section 10.5 to any Securities of or within a series and any Coupons
appertaining thereto:
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(1) The Issuer shall have deposited or caused to be deposited
irrevocably with the Trustee (or another Trustee satisfying the requirements
of Section 6.9 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 10.3 through 10.9 inclusive and the
last paragraph of Section 3.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making
the payments referred to in clauses (X) and (Y) of this Section 10.6(1),
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities and any Coupons appertaining thereto, with
instructions to the Trustee as to the application thereof, (a) money in an
amount (in such currency, currencies or currency unit or units in which such
Securities and any Coupons appertaining thereto are then specified as payable
at maturity), or (b) if Securities of such Series are not subject to repayment
at the option of Holders, U.S. Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment
referred to in clause (X) or (Y) of this Section 10.6(1), money in an amount
or (c) a combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
(X) the principal of, premium, if any, and interest, if any, on Securities and
any Coupons appertaining thereto on the maturity of such principal or
installment of principal or interest and (Y) any mandatory sinking fund
payments applicable to such Securities on the day on which such payments are
due and payable in accordance with the terms of this Indenture and such
Securities and any Coupons appertaining thereto. Before such a deposit the
Issuer may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article XII which shall
be given effect in applying the foregoing.
(2) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default or Event of Default under,
this Indenture or result in a breach or violation of, or constitute a default
under, any other material agreement or instrument to which the Issuer is a
party or by which it is bound.
(3) In the case of an election under Section 10.4, the Issuer
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (a) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date of
execution of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to
Federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge
had not occurred.
(4) In the case of an election under Section 10.5, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
53
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amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(5) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 10.4 or the covenant defeasance
under Section 10.5 (as the case may be), including those contained in this
Section 10.6 other than the 90 day period specified in Section 10.6(7), have
been complied with.
(6) This Issuer shall have delivered to the Trustee an Officer's
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.
(7) 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(5) and (6), 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).
(8) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940 unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Issuer in connection therewith as contemplated by
Section 2.3.
Section 10.7 Deposited Money and U.S. Government Obligations to be
-----------------------------------------------------
Held in Trust. Subject to the provisions of the last paragraph of Section 3.3,
- -------------
all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 2.3) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 10.6 in respect of any Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent) as the Trustee may determine, to the Holders of such Securities
and any Coupons appertaining thereto of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if any, but
such money need not be segregated from other funds except to the extent
required by law.
Section 10.8 Repayment to Issuer. The Trustee (any paying agent)
-------------------
shall promptly pay to the Issuer upon Issuer Order any excess money or
securities held by them at any time.
Section 10.9 Indemnity For U.S. Government Obligations. The Issuer
------------------------------------------
shall pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against
54
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U.S. Government Obligations deposited pursuant to this Article or the
principal and interest and any other amount received on such U.S. Government
Obligations.
Section 10.10 Reimbursement. 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 government
authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities from which the
Issuer has been discharged or released pursuant to Section 10.4 or 10.5 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 10.7 with respect to such
Securities in accordance with this Article; PROVIDED, HOWEVER, that if the
Issuer makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Issuer 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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers and Directors of
------------------------------------------------------
Issuer Exempt from Individual Liability. No recourse under or upon any
- ----------------------------------------
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
Section 11.2 Provisions of Indenture for the Sole Benefit of
-----------------------------------------------
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
- ---------------------------------------------
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the Holders of the Securities
or Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
Section 11.3 Successors and Assigns of Issuer Bound by Indenture.
----------------------------------------------------
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of
-----------------------------------------------------
Securities and Coupons. Any notice or demand which by any provision of this
- -----------------------
Indenture is required or permitted
55
<PAGE>
to be given or served by the Trustee or by the Holders of Securities or Coupons
to or on the Issuer may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee)
to Ohio Casualty Corporation, 136 North Third Street, Hamilton, Ohio 45025,
Attn: Chief Financial Officer. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the Trustee shall
be deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with
the Issuer) to Chase Manhattan Trust Company, National Association, Chase
Financial Tower, 250 West Huron Road, Suite 220, Cleveland, Ohio 44113, Attn:
Corporate Trust Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder entitled thereto, at his or her last address as it appears in
the Security register. In any case where notice to such Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the person
entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice.
Section 11.5 Officer's Certificates and Opinions of Counsel;
-----------------------------------------------
Statements to Be Contained Therein. Upon any application or demand by the
- -----------------------------------
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent 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 have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition,
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (3) a statement that, in the opinion of such
person, he or she has made such examination or investigation as is necessary
to enable him or her to express an informed opinion as to whether or
56
<PAGE>
not such covenant or condition has been complied with and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his or her certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same
are erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
actually knows that the certificate, statement or opinion or representations
with respect to the matters upon which his or her certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or
representations by an accountant or firm of accountants in the employ of the
Issuer, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his or her certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.
------------------------------------------------
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
Section 11.8 New York Law to Govern. This Indenture and each
-----------------------
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance
with the laws of such State, except as may otherwise be required by mandatory
provisions of law.
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Section 11.9 Counterparts. This Indenture may be executed in any
-------------
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 11.10 Effect of Headings. The Article and Section headings
-------------------
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 11.11 Securities in a Foreign Currency or in ECU. Unless
-------------------------------------------
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the
Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding Securities of
any series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series
which shall be deemed to be Outstanding for the purpose of taking such
action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate. For purposes of this Section 11.11,
Market Exchange Rate shall mean the noon Dollar buying rate in New York
City for cable transfers of that currency as published by the Federal
Reserve Bank of New York; PROVIDED, HOWEVER, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Communities (or any successor thereto) as published in the
Official Journal of the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available
for any reason with respect to such currency, the Trustee shall use, in its
sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more
major banks in the City of New York or in the country of issue of the currency
in question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the Trustee
shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a
series denominated in a currency other than Dollars in connection with any
action taken by Holders of Securities pursuant to the terms of this Indenture
including without limitation any determination contemplated in Section 5.1(7).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Holders.
Section 11.12 Judgment Currency. The Issuer agrees, to the fullest
------------------
extent that it may effectively do so under applicable law, that (1) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in the City of New York
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<PAGE>
the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a Business Day, then,
to the extent permitted by applicable law, the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in the City of New York the Required Currency with the Judgment
Currency on the Business Day preceding the day on which final unappealable
judgment is entered and (2) its obligations under this Indenture to make
payments in the Required Currency (a) shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (1)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in
the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (b) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering
in the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (c) shall not be affected by judgment being obtained for any other
sum due under this Indenture.
Section 11.13 Separability Clause. If any provision of this
--------------------
Indenture or of the Securities, or the application of any such provision to
any Person or circumstance, shall be held to be invalid,
illegal or unenforceable, the remainder of this Indenture or of the
Securities, or the application of such provision to Persons or circumstances
other than those as to whom or which it is invalid, illegal or unenforceable,
shall not in any way be affected or impaired thereby.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
Section 12.2 Notice of Redemption; Partial Redemptions. Notice of
------------------------------------------
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939 shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not
more than 60 prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available
to the Issuer for such purpose). Notice of redemption to all other Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, the City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.10, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior
59
<PAGE>
to the date fixed for redemption. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation
and surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the date
fixed for redemption, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.3) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer
will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officer's Certificate stating the aggregate principal amount of
Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice
of redemption to Holders pursuant to this Section, an Officer's Certificate
stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may
be redeemed in part in multiples equal to the minimum authorized denomination
for Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
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 of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
60
<PAGE>
Section 12.3 Payment of Securities Called for Redemption. If
--------------------------------------------
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured Coupons, if
any, appertaining thereto shall be void, and, except as provided in Sections
3.3 and 6.5, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest to the
date fixed for redemption. On presentation and surrender of such Securities at
a place of payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; PROVIDED that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, such Security may be redeemed after deducting
from the redemption price any amount equal to the face amount of all
such missing Coupons, or the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any paying agent any such missing Coupon in respect of which a
deduction shall have been made from the redemption price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that interest
represented by Coupons shall be payable as provided in Section 2.9 and, unless
otherwise specified as contemplated by Section 2.3, only upon presentation and
surrender of those Coupons.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
61
<PAGE>
Section 12.4 Exclusion of Certain Securities from Eligibility for
----------------------------------------------------
Selection for Redemption. Securities shall be excluded from eligibility for
- ------------------------
selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such written statement as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer.
Section 12.5 Mandatory and Optional Sinking Funds. (1) The
-------------------------------------
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of the Securities of any series is
herein referred to as an "optional sinking fund payment". The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund
payment date".
(2) In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or
receive credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10,
(b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities
of such series (not previously so credited) redeemed by the Issuer through
any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities.
(3) On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to
the Trustee with such Officer's Certificate (or reasonably promptly thereafter
if acceptable to the Trustee). Such Officer's Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such 60th day, to deliver such
Officer's Certificate and
62
<PAGE>
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section.
(4) If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) or a lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount shall be
$50,000 (or the equivalent thereof in any Foreign Currency or ECU) or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 (or the equivalent thereof in any Foreign Currency or ECU) is
available. The Trustee shall select, in the manner provided in Section 12.2,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and
shall (if requested in writing by the Issuer) inform the Issuer of the serial
numbers of the Securities of such series (or portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this Section
if they are identified by registration and certificate number in an Officer's
Certificate delivered to the Trustee at least 60 days prior to the sinking fund
payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officer's Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 12.2 (and with the effect provided in Section 12.3) for the
redemption of Securities of such series in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next
cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient
for the purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
(5) On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
(6) The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by
63
<PAGE>
operation of the sinking fund during the continuance of a default in payment of
interest on such Securities or of any Event of Default except that, where the
giving of notice of redemption of any Securities shall theretofore have been
made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer a sum sufficient for such
redemption. 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 the sinking fund, shall, during the continuance
of such default or Event of Default, be deemed to have been collected under
Article V and held for the payment of all such Securities. In case such Event
of Default shall have been waived as provided in Section 5.10 or the default
cured on or before the sixtieth day preceding the sinking fund payment date in
any year, such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the redemption of
such Securities.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed and attested, all as of
---------------------,------.
OHIO CASUALTY CORPORATION
Attest:
By:
--------------------------
Name:
Title:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
[CORPORATE SEAL] as Trustee
Attest:
By:
---------------------------
Name:
Title:
65
<PAGE>
EXHIBIT 4.4
Form of Supplemental Indenture to Senior Indenture providing for the issuance
of senior notes
<PAGE>
- ---------------------------------------------------------------------------
OHIO CASUALTY CORPORATION
TO
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
Trustee
---------------------------------------
FORM OF
SUPPLEMENTAL INDENTURE
Dated as of
------------
---------------------------------------
$
Series [ ]% Senior Notes
Due [ ]
- ----------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS1
Page
----
ARTICLE I Series [ ]% Senior Notes..................................1
SECTION 1.1. Establishment..........................................1
-------------
SECTION 1.2. Definitions............................................2
-----------
SECTION 1.3. Payment of Principal and Interest......................2
---------------------------------
SECTION 1.4. Denominations..........................................3
-------------
SECTION 1.5. Global Securities......................................3
-----------------
SECTION 1.6. Redemption.............................................3
----------
SECTION 1.7. Paying Agent...........................................3
------------
ARTICLE II Miscellaneous Provisions.....................................4
SECTION 2.1. Recitals by Corporation................................4
-----------------------
SECTION 2.2. Ratification and Incorporation of Original Indenture...4
----------------------------------------------------
SECTION 2.3. Executed in Counterparts...............................4
------------------------
EXHIBIT A Form of Series [ ] Senior Note Due [ ], [ ]
EXHIBIT B Certificate of Authentication
- --------------------
1This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
i
<PAGE>
THIS [ ] SUPPLEMENTAL INDENTURE is made as of the [ ] day of
[ ], [ ], by and between OHIO CASUALTY CORPORATION, a corporation
duly organized and existing under the laws of the State of Ohio (the
"Company"), and Chase Manhattan Trust Company, National Association, a national
banking association, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior Indenture, dated
as of [ ], [ ] (the "Original Indenture") with Chase Manhattan
Trust Company, National Association, as Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as may be amended and supplemented to the date
hereof, including by this [ ]Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Indenture, a new series of Securities may at any time
be established in accordance with the provisions of the Indenture and the terms
of such series may be described by a supplemental indenture executed by the
Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a series of
Securities;
WHEREAS, additional Securities of other series hereafter established,
except as may be limited in the Indenture as at the time supplemented and
modified, may be issued from time to time pursuant to the Indenture as at the
time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this [ ] Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Series [ ]% Senior Notes
SECTION 1.1. Establishment. There is hereby established a new series of
-------------
Securities to be issued under the Indenture, to be designated as the Company's
Series [ ]% Senior Notes due [ ], [ ] (the "Series [ ]
Notes").
There are to be authenticated and delivered $[ ] principal
amount of Series [ ] Notes, and no further Series [ ] Notes shall be
authenticated and delivered except as provided by Sections 2.8, 2.9, 2.11, 8.5
or 12.3 of the Original Indenture. The Series [ ] Notes shall be issued in
definitive fully registered form without coupons.
<PAGE>
The Series [ ] Notes shall be in substantially the form set out in
Exhibit A hereto, and the form of the Trustee's Certificate of Authentication
for the Series [ ] Notes shall be in substantially the form set forth in
Exhibit B hereto.
Each Series [ ] Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
SECTION 1.2. Definitions. The following defined terms used herein shall,
-----------
unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means [ ].
"Regular Record Date" means [ ].
"Stated Maturity" means [ ].
SECTION 1.3. Payment of Principal and Interest. The unpaid principal
---------------------------------
amount of the Series [ ] Notes shall bear interest at the rate of [ ]%
per annum until paid or duly provided for, such interest to accrue from
[ ], [ ] or from the most recent Interest Payment Date to which
interest has been paid or duly provided for. Interest shall be paid
[ ] in arrears on each Interest Payment Date to the Person in
whose name in the Series [ ] Notes are registered on the Regular Record
Date for such Interest Payment Date; provided that interest payable at the
Stated Maturity of principal or on a Redemption Date as provided herein will
be paid to the Person to whom principal is payable. Any such interest that is
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holders on such Regular Record Date and will be paid to the Person or
Persons in whose name the Series [ ] Notes are registered at the close of
business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Company ("Special Record Date"), notice whereof shall be
given to Holders of the Series [ ] Notes not less than fifteen (15) days
prior to such Special Record Date, as more fully provided in the Original
Indenture.
Payments of interest on the Series [ ] Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series [ ] Notes shall be computed and paid on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series [ ] Notes is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or payment in
respect of any such delay) except that if such next Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable.
Payment of the principal and interest on the Series [ ] Notes shall be
made at the office of the Paying Agent in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, with any such payment that is
2
<PAGE>
due at the Stated Maturity or at earlier redemption of any Series [ ]
Notes being made upon surrender of such Series [ ] Notes to the Paying
Agent. Payments of interest (including interest on any Interest Payment Date)
will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Trustee at least sixteen
(16) days prior to the date for payment by the Person entitled thereto.
SECTION 1.4. Denominations. The Series [ ] Notes may be issued in
-------------
denominations of $[ ] or any integral multiple thereof.
SECTION 1.5. Global Securities. The Series [ ] Notes will initially
-----------------
be issued in the form of one or more Global Securities registered in the
name of the Depositary (which initially shall be ) or its
-----------------
nominee. Except under the limited circumstances described below, Series Notes
represented by such Global Security or Global Securities will not be
exchangeable for, and will not otherwise be issuable as, Series Notes in
definitive form. The Global Securities described above may not be transferred
except 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 or to a
successor Depositary or its nominee.
A Global Security shall be exchangeable for Series [ ] Notes
registered in the names of the persons other than the Depositary or its nominee
only if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as a Depositary for such Global Security and no successor
Depositary shall have been appointed by the Company within 90 days of receipt
by the Company of such notification, or if at any time the Depositary ceases
to be a clearing agency registered under the Exchange Act at a time when the
Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed by the Company within 90 days
after it becomes aware of such cessation, or (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable. Any
Global Security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for Series [ ] Notes registered in such names as the
Depositary shall direct.
SECTION 1.6. Redemption and Sinking Fund. The Series [ ] Notes shall
---------------------------
not be subject to redemption. The Series [ ] Notes shall not have a sinking
fund.2
SECTION 1.7. Paying Agent. The Trustee shall initially serve as Paying
------------
Agent with respect to the Series [ ] Notes , with the Place of Payment
initially being the Corporate Trust Office.
- --------------
2 Subject to change.
3
<PAGE>
ARTICLE II
Miscellaneous Provisions
SECTION 2.1. Recitals by Corporation. The recitals in this Supplemental
-----------------------
Indenture are made by the Company only and not by the Trustee, and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable
in respect of the Series [ ] Notes and of this [ ] Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 2.2. Ratification and Incorporation of Original Indenture. As
----------------------------------------------------
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this [ ] Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 2.3. Executed in Counterparts. This [ ] Supplemental
------------------------
Indenture may be executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
4
<PAGE>
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the
day and year first above written.
OHIO CASUALTY CORPORATION
Attest:
By:
- ------------------------------ ----------------------------------
Name:
Title:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
[CORPORATE SEAL] as Trustee
Attest:
By:
- ------------------------------ ----------------------------------
Name:
Title:
5
<PAGE>
EXHIBIT A
FORM OF
SERIES [ ]% SENIOR NOTE
DUE [ ], [ ]
No. CUSIP NO.
OHIO CASUALTY CORPORATION
SERIES [ ]% SENIOR NOTE
DUE [ ], [ ]
Principal Amount: $[ ]
Regular Record Date:[ ], [ ]
Original Issue Date: [ ], [ ]
Stated Maturity: [ ], [ ]
Interest Payment Dates: [ ], [ ]
Interest Rate: [ ]% per annum
Authorized Denomination: $[ ] or any integral multiples thereof
Ohio Casualty Corporation, a corporation duly organized and existing under
the laws of the State of Ohio (the "Company"), which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to [ ],
or registered assigns, the principal sum of [ ]
DOLLARS ($[ ]) on the Stated Maturity shown above and to pay interest
thereon from the Original Issue Date shown above, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
[ ] in arrears on each Interest Payment Date as specified above,
commencing on the Interest Payment Date next succeeding the Original Issue Date
shown above and on the Stated Maturity at the rate per annum shown above (the
"Interest Rate") until the principal hereof is paid or made available for
payment and on any overdue principal and on any overdue installment of
interest. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date (other than an Interest Payment Date that is the
Stated Maturity will, as provided in such Indenture, be paid to the Person in
whose name this Series [ ]% Senior Note (this "Security") is registered at
the close of business on the Regular Record Date as specified above next
preceding such Interest Payment Date; provided that any interest payable at
Stated Maturity will be paid to the Person to whom principal is payable.
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and will be the Person in whose name this
Security is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
A-1
<PAGE>
whereof shall be given to Holders of Securities of this series not less than
15 days prior to such Special Record Date, as more fully provided in said
Indenture.
Payments of interest on this Security will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this
Security shall be computed and paid on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on this
Security is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and
without any interest or payment in respect of any such delay) except that if
such next Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally
payable. "Business Day" means a day other than a day on which banks in New
York, New York are authorized or required by law, executive order or regulation
to remain closed.
Payment of the principal of and interest due at the Stated Maturity of
this Security shall be made upon surrender of this Security, at the Corporate
Trust Office, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Payment of interest (including interest on an Interest Payment Date) will be
made, subject to such surrender where applicable, at the option of the Company,
(i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer at such
place and to such account at a banking institution in the United States as may
be designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto.
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 by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: [ ], 199[ ]
OHIO CASUALTY CORPORATION
By:
Attest: ------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-
mentioned Senior Indenture.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
A-3
<PAGE>
(Reverse Side of Security)
This Security is one of a duly authorized issue of Securities of the
Company (the "Securities"), issued and issuable in one or more series under a
Senior Indenture, dated as of [ ], [ ], as supplemented (the
"Indenture"), between the Company and Chase Manhattan Trust Company, National
Association, as Trustee (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, limitation of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities issued thereunder and of the
terms upon which said Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof as
Series [ ]% Senior Notes due [ ], [ ] (the "Series [ ]
Notes") in the aggregate principal amount of up to $[ ]. Capitalized
terms used herein for which no definition is provided herein shall have the
meanings set forth in the Indenture.
[The Securities of this series are not subject to redemption prior to
their Stated Maturity.]3
If an Event of Default with respect to the Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of all series affected
under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series affected thereby (voting as one class).
The Indenture contains provisions permitting the Holders of not less than a
majority in principal amount of the Outstanding Securities of all series with
respect to which a default under the Indenture shall have occurred and be
continuing (voting as one class), on behalf of the Holders of the Securities
of all such series, to waive, with certain exceptions, such default under the
Indenture and its 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 hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
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 and interest on 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 security
register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company for such purpose,
- --------------------
3 Subject to change.
A-4
<PAGE>
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee and duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Securities of this series, of authorized denominations and of like tenor
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees. 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.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and shall have offered the Trustee such
indemnity as it may require, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit, instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest hereon on or after the respective
due dates expressed herein.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Securities of this Series [ ] and for covenant
defeasance at any time of certain covenants in the Indenture upon compliance
with certain conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $[ ] and any integral multiple thereof.
As provided in the Indenture and subject to the limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged at the office or agency of the Company.
This Security shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
A-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ,Custodian for
-------------- ---------------------
(Cust) (Minor)
under the Uniform Gifts to Minors Act
-------------
(State)
Additional abbreviations may also be used though not on the above list.
-------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
(please insert Social Security or other identifying number of
- ---------------
assignee) the within Security and all rights thereunder, hereby irrevocably
constituting and appointing agent to transfer said Security on the books of the
Company, with full power of substitution in the premises.
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Dated:
-------- ----------
---------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the within
instrument in every particular without alteration or
enlargement, or any change whatever.
A-6
<PAGE>
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Senior
Indenture.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------
Authorized Officer
<PAGE>
EXHIBIT 4.6
Form of Subordinated Indenture to be entered into between Ohio Casualty
and the Indenture Trustee
<PAGE>
OHIO CASUALTY CORPORATION
AND
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, Trustee
SUBORDINATED INDENTURE
Dated as of [ ]
<PAGE>
CROSS REFERENCE SHEET(*)
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
, between OHIO CASUALTY CORPORATION and CHASE MANHATTAN TRUST
- ------ ----
COMPANY, NATIONAL ASSOCIATION, Trustee:
Section of the Act Section of Indenture
- ------------------ --------------------
310(a)(1) and (2)..........................................................6.9
310(a)(3) and (4).................................................Inapplicable
310(b).............................................6.8 and 6.10(1),(2) and (4)
310(c)............................................................Inapplicable
311(a)....................................................................6.13
311(b)....................................................................6.13
311(c)............................................................Inapplicable
312(a).............................................................4.1 and 4.2
312(b).....................................................................4.2
312(c).....................................................................4.2
313(a).....................................................................4.3
313(b)(1).........................................................Inapplicable
313(b)(2)..................................................................4.3
313(c).....................................4.3, 5.11, 6.10, 6.11, 8.2 and 12.2
313(d).....................................................................4.3
314(a)............................................................3.4 and 3.10
314(b)............................................................Inapplicable
314(c)(1) and (2).........................................................11.5
314(c)(3).........................................................Inapplicable
314(d)............................................................Inapplicable
314(e)....................................................................11.5
314(f)............................................................Inapplicable
315(a), (c) and (d)........................................................6.1
315(b)....................................................................5.11
315(e)....................................................................5.12
316(a)(1).........................................................5.9 and 5.10
316(a)(2).........................................................Not required
316(a) (last sentence).....................................................7.4
316(b).....................................................................5.7
317(a).....................................................................5.2
317(b).....................................................................3.3
318(a)....................................................................11.7
(*) This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.................................................1
Section 1.1 Certain Terms Defined..................................1
ARTICLE II SECURITIES................................................ 7
Section 2.1 Forms Generally....................................... 7
---------------
Section 2.2 Form of Trustee's Certificate of Authentication....... 8
-----------------------------------------------
Section 2.3 Amount Unlimited; Issuable in Series.................. 8
------------------------------------
Section 2.4 Authentication and Delivery of Securities.............11
-----------------------------------------
Section 2.5 Execution of Securities...............................13
-----------------------
Section 2.6 Certificate of Authentication.........................14
-----------------------------
Section 2.7 Denomination and Date of Securities;
-----------------------------------
Payments of Interest..................................14
--------------------
Section 2.8 Registration, Transfer and Exchange...................15
-----------------------------------
Section 2.9 Mutilated, Defaced, Destroyed, Lost
-----------------------------------
and Stolen Securities.................................18
---------------------
Section 2.10 Cancellation of Securities; Destruction Thereof......19
-----------------------------------------------
Section 2.11 Temporary Securities.................................20
--------------------
ARTICLE III COVENANTS OF THE ISSUER..................................20
Section 3.1 Payment of Principal, Premium and Interest............20
------------------------------------------
Section 3.2 Offices for Payments, Etc.............................21
-------------------------
Section 3.3 Money for Security Payments to be Held in Trust;
------------------------------------------------
Unclaimed Money.......................................22
---------------
Section 3.4 Statements of Officers of Issuer as to Default;
-----------------------------------------------
Notice of Default.....................................23
-----------------
Section 3.5 Existence.............................................23
---------
Section 3.6 Maintenance of Properties.............................23
-------------------------
i
<PAGE>
Section 3.7 Payment of Taxes and Other Claims.....................24
---------------------------------
Section 3.8 Further Instruments and Acts..........................24
----------------------------
Section 3.9 Luxembourg Publications...............................24
-----------------------
Section 3.10 Commission Reports...................................24
------------------
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE................................24
Section 4.1 Issuer to Furnish Trustee Information as to Names
-------------------------------------------------
and Addresses of Securityholders......................24
--------------------------------
Section 4.2 Preservation of Information; Communications to
----------------------------------------------
Holders...............................................25
-------
Section 4.3 Reports by the Trustee................................25
----------------------
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT......................................25
Section 5.1 Event of Default Defined; Acceleration of
-----------------------------------------
Maturity; Waiver of Default...........................25
---------------------------
Section 5.2 Collection of Indebtedness by Trustee; Trustee
----------------------------------------------
May Prove Debt........................................28
--------------
Section 5.3 Application of Proceeds...............................30
-----------------------
Section 5.4 Suits for Enforcement.................................31
---------------------
Section 5.5 Restoration of Rights on Abandonment of Proceedings...31
---------------------------------------------------
Section 5.6 Limitations on Suits by Securityholders...............31
---------------------------------------
Section 5.7 Unconditional Right of Securityholders to
-----------------------------------------
Institute Certain Suits...............................32
-----------------------
Section 5.8 Powers and Remedies Cumulative; Delay or Omission
-------------------------------------------------
Not Waiver of Default.................................32
---------------------
Section 5.9 Control by Holders of Securities......................33
--------------------------------
Section 5.10 Waiver of Past Defaults..............................33
-----------------------
Section 5.11 Trustee to Give Notice of Default, but May
------------------------------------------
Withhold in Certain Circumstances....................33
---------------------------------
ii
<PAGE>
Section 5.12 Right of Court to Require Filing of Undertaking
-----------------------------------------------
to Pay Costs.........................................34
------------
ARTICLE VI CONCERNING THE TRUSTEE....................................34
Section 6.1 Duties and Responsibilities of the Trustee;
-------------------------------------------
During Default; Prior to Default......................34
--------------------------------
Section 6.2 Certain Rights of the Trustee.........................36
-----------------------------
Section 6.3 Trustee Not Responsible for Recitals, Disposition
-------------------------------------------------
of Securities or Application of Proceeds Thereof......37
------------------------------------------------
Section 6.4 Trustee and Agents May Hold Securities or
-----------------------------------------
Coupons; Collections, Etc.............................37
-------------------------
Section 6.5 Moneys Held by Trustee................................37
----------------------
Section 6.6 Compensation and Indemnification of Trustee
-------------------------------------------
and its Prior Claim...................................37
-------------------
Section 6.7 Right of Trustee to Rely on Officer's
-------------------------------------
Certificate, Etc......................................38
----------------
Section 6.8 Indentures Not Creating Potential Conflicting
---------------------------------------------
Interests for the Trustee.............................38
-------------------------
Section 6.9 Persons Eligible for Appointment as Trustee...........38
-------------------------------------------
Section 6.10 Resignation and Removal; Appointment of
---------------------------------------
Successor Trustee....................................39
-----------------
Section 6.11 Acceptance of Appointment by Successor Trustee.......40
----------------------------------------------
Section 6.12 Merger, Conversion, Consolidation or
------------------------------------
Succession to Business of Trustee....................41
---------------------------------
Section 6.13 Preferential Collection of Claims
---------------------------------
Against the Issuer...................................42
------------------
Section 6.14 Appointment of Authenticating Agent..................42
-----------------------------------
ARTICLE VII CONCERNING THE SECURITYHOLDERS...........................43
Section 7.1 Evidence of Action Taken by Securityholders...........43
-------------------------------------------
Section 7.2 Proof of Execution of Instruments and of Holding
------------------------------------------------
of Securities.........................................43
-------------
Section 7.3 Holders to Be Treated as Owners.......................44
-------------------------------
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding.....44
-------------------------------------------------
iii
<PAGE>
Section 7.5 Right of Revocation of Action Taken...................45
-----------------------------------
ARTICLE VIII SUPPLEMENTAL INDENTURES.................................45
Section 8.1 Supplemental Indentures Without Consent of
------------------------------------------
Securityholders.......................................45
---------------
Section 8.2 Supplemental Indentures With Consent
------------------------------------
of Securityholders....................................46
------------------
Section 8.3 Effect of Supplemental Indenture......................48
--------------------------------
Section 8.4 Documents to Be Given to Trustee......................48
--------------------------------
Section 8.5 Notation on Securities in Respect of
------------------------------------
Supplemental Indentures...............................48
-----------------------
Section 8.6 Subordination Unimpaired..............................49
------------------------
Section 8.7 Conformity with Trust Indenture Act of 1939...........49
-------------------------------------------
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE.................49
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms...49
---------------------------------------------------
Section 9.2 Successor Substituted for the Issuer..................49
------------------------------------
Section 9.3 Restrictions on Certain Dispositions..................49
------------------------------------
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS......................................50
Section 10.1 Termination of Issuer's Obligations
-----------------------------------
Under the Indenture..................................50
-------------------
Section 10.2 Application of Trust Funds...........................51
--------------------------
Section 10.3 Applicability of Defeasance Provisions; Issuer's
------------------------------------------------
Option to Effect Defeasance or Covenant Defeasance...51
--------------------------------------------------
Section 10.4 Defeasance and Discharge.............................52
------------------------
Section 10.5 Covenant Defeasance..................................52
-------------------
Section 10.6 Conditions to Defeasance or Covenant Defeasance......53
-----------------------------------------------
Section 10.7 Deposited Money and U.S. Government Obligations to
--------------------------------------------------
be Held in Trust.....................................54
---------------
iv
<PAGE>
Section 10.8 Repayment to Issuer..................................55
-------------------
Section 10.9 Indemnity For U.S. Government Obligations............55
-----------------------------------------
Section 10.10 Reimbursement.......................................55
-------------
ARTICLE XI MISCELLANEOUS PROVISIONS..................................55
Section 11.1 Incorporators, Stockholders, Officers and Directors
---------------------------------------------------
of Issuer Exempt from Individual Liability...........55
------------------------------------------
Section 11.2 Provisions of Indenture for the Sole Benefit of
-----------------------------------------------
Parties and Holders of Securities and Coupons........55
---------------------------------------------
Section 11.3 Successors and Assigns of Issuer Bound by
-----------------------------------------
Indenture............................................56
---------
Section 11.4 Notices and Demands on Issuer, Trustee and Holders
--------------------------------------------------
of Securities and Coupons............................56
-------------------------
Section 11.5 Officer's Certificates and Opinions of Counsel;
-----------------------------------------------
Statements to Be Contained Therein...................56
----------------------------------
Section 11.6 Payments Due on Saturdays, Sundays and Holidays......57
-----------------------------------------------
Section 11.7 Conflict of Any Provision of Indenture with
-------------------------------------------
Trust Indenture Act of 1939..........................57
---------------------------
Section 11.8 New York Law to Govern...............................58
----------------------
Section 11.9 Counterparts.........................................58
------------
Section 11.10 Effect of Headings..................................58
------------------
Section 11.11 Securities in a Foreign Currency or in ECU..........58
------------------------------------------
Section 11.12 Judgment Currency...................................59
-----------------
Section 11.13 Separability Clause.................................59
-------------------
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS...............59
Section 12.1 Applicability of Article.............................59
------------------------
Section 12.2 Notice of Redemption; Partial Redemptions............59
-----------------------------------------
v
<PAGE>
Section 12.3 Payment of Securities Called for Redemption..........61
-------------------------------------------
Section 12.4 Exclusion of Certain Securities from Eligibility
------------------------------------------------
for Selection for Redemption.........................62
----------------------------
Section 12.5 Mandatory and Optional Sinking Funds.................62
------------------------------------
ARTICLE XIII SUBORDINATION...........................................64
Section 13.1 Agreement to Subordinate.............................64
------------------------
Section 13.2 Rights of Senior Indebtedness in the Event of
---------------------------------------------
Insolvency, Etc., of the Issuer......................64
-------------------------------
Section 13.3 Payment Over of Proceeds Received on Securities......65
-----------------------------------------------
Section 13.4 Payments to Holders..................................67
-------------------
Section 13.5 Holders of Securities Authorize Trustee to
------------------------------------------
Effectuate Subordination of Securities...............67
--------------------------------------
Section 13.6 Notice to Trustee....................................67
-----------------
Section 13.7 Trustee May Hold Senior Indebtedness.................67
------------------------------------
Section 13.8 Applicability of Article XIII to Paying Agents.......68
----------------------------------------------
vi
<PAGE>
THIS INDENTURE, dated as of [ ], between OHIO CASUALTY
CORPORATION, an Ohio corporation (the "Issuer"), and Chase Manhattan Trust
Company, National Association, a national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities and of the Coupons, if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms (except as
---------------------
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933 (except as herein otherwise expressly provided or
unless the context otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act of 1939 and in said Securities Act as in
force at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means such accounting principles as are generally
accepted at the time of any computation. The words "HEREIN", "HEREOF" and
"HEREUNDER" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
1
<PAGE>
"AUTHENTICATING AGENT" shall have the meaning set forth in Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in the
official language of the country of publication or in the English language
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Issuer to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that in the city
(or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law, executive order or regulation
to close.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
"CONSOLIDATED TOTAL ASSETS" means, in respect of the Issuer as of any date
of determination, the amount of total assets shown on the consolidated balance
sheet of the Issuer and its consolidated subsidiaries contained in the most
recent annual or quarterly report filed with the Commission, or if the Issuer
is not then subject to the Securities Exchange Act of 1934, the most recent
annual or quarterly report to stockholders and, in respect of any Subsidiary as
of any date of determination, the amount of total assets of such Subsidiary and
its consolidated subsidiaries from which such consolidated balance sheet of the
Issuer and its consolidated Subsidiaries was derived.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at Chase Financial Tower, 250 West Huron Road,
Suite 220, Cleveland, Ohio 44113.
"COUPON" means any interest coupon appertaining to an Unregistered
Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in Section 10.5.
2
<PAGE>
"DEFEASANCE" shall have the meaning set forth in Section 10.4.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in global form, the Person designated as Depositary by the Issuer
pursuant to Section 2.3 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"DEPOSITARY" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "DEPOSITARY"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Securities in global form of that
series.
"DOLLAR" means the coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of European Communities.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"FAIR VALUE" when used with respect to Voting Stock means the fair value
as determined in good faith by the Board of Directors of the Issuer.
"FOREIGN CURRENCY" means a currency issued by the government of a country
other than the United States.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar terms
mean (a) in the case of any Registered Security, the person in whose name such
Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section 5.1.
"INDENTURE" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"INSURANCE SUBSIDIARY" means a Subsidiary registered in the state of its
domicile under the insurance laws of such state and qualified to sell insurance
products.
"ISSUER" means (except as otherwise provided in Article VI) Ohio Casualty
Corporation, an Ohio corporation and, subject to Article IX, its successors and
assigns.
3
<PAGE>
"ISSUER ORDER" means a written statement, request or order of the Issuer
signed in its name by the chairman or vice chairman of the Board of Directors,
the president, any executive, senior or other vice president or the treasurer
of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section 11.12.
"OFFICER'S CERTIFICATE" means a certificate signed by the chairman or vice
chairman of the Board of Directors, the president or any executive, senior or
other vice president or the treasurer of the Issuer and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by the General
Counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall comply with Section 314 of the Trust Indenture Act of 1939
and include the statements provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (1) the date of such Security or (2) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE 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 5.1.
"OUTSTANDING" (except as otherwise provided in Sections 7.4, 10.4 and
10.5), when used with reference to Securities, shall, subject to the provisions
of Sections 7.4, 10.4 and 10.5 mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.1)
in the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent), PROVIDED that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(3) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is
4
<PAGE>
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer) or Securities not deemed outstanding pursuant to
Section 12.2.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, (whether or not designated by numbers or words added before or
after the title "VICE PRESIDENT") the cashier, the secretary, the treasurer,
any trust officer, any assistant trust officer, any assistant vice president,
any assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means (1) so long as they are Subsidiaries of the
Issuer, West American Insurance Company, Ohio Security Insurance Company, The
Ohio Casualty Insurance Company and American Fire and Casualty Company; (2) any
other future or present Insurance Subsidiary the Consolidated Total Assets of
which constitute 20 percent or more of the
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Consolidated Total Assets of the Issuer; and (3) any Subsidiary which is a
successor, by merger or otherwise, to substantially all of the business or
properties of any Insurance Subsidiary referred to or described in the
foregoing clauses (1) or (2).
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on (1) all indebtedness of the Issuer, whether outstanding on the date
of this Indenture or thereafter created, (a) for money borrowed by the Issuer,
(b) for money borrowed by, or obligations of, others and either assumed or
guaranteed, directly or indirectly, by the Issuer, (c) in respect of letters of
credit and acceptances issued or made by banks, or (d) constituting purchase
money indebtedness, or indebtedness secured by property included in the
property, plant and equipment accounts of the Issuer at the time of the
acquisition of such property by the Issuer, for the payment of which the Issuer
is directly liable, and (2) all deferrals, renewals, extensions and refundings
of, and amendments, modifications and supplements to, any such indebtedness. As
used in the preceding sentence the term "purchase money indebtedness" means
indebtedness evidenced by a note, debenture, bond or other instrument (whether
or not secured by any lien or other security interest) issued or assumed as all
or a part of the consideration for the acquisition of property, whether by
purchase, merger, consolidation or otherwise, unless by its terms such
indebtedness is subordinate to other indebtedness of the Issuer.
Notwithstanding anything to the contrary in this Indenture or the Securities,
Senior Indebtedness shall not include (a) any indebtedness of the Issuer which,
by its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to or PARI PASSU with the Securities or (b) any
indebtedness of the Issuer to a Subsidiary.
"SECURITY" or "SECURITIES" (except as otherwise provided in Section 7.4)
has the meaning stated in the first recital of this Indenture, or, as the case
may be, Securities that have been authenticated and delivered under this
Indenture.
"SUBSIDIARY" means any corporation, partnership or other entity of which
at the time of determination the Issuer owns or controls directly or indirectly
more than 50% of the shares of Voting Stock.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the date as
of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article VI, shall also include any
successor trustee. "Trustee" shall also 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 the Securities of such series.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is
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pledged or (2) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed by the full faith and credit of
the United States of America which, in either case, are not callable or
redeemable at the option of the issuer thereof or otherwise subject to
prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment or interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt or from any amount held by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by
such depository receipt.
"VOTING STOCK" means stock of any class or classes having general voting
power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, PROVIDED that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"YIELD TO MATURITY" means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section 2.1 Forms Generally. The Securities of each series and the
---------------
Coupons, if any, to be attached thereto shall be substantially in such form
(not inconsistent with this Indenture) as shall be established by or pursuant
to one or more Board Resolutions (as set forth in a Board Resolution or, to the
extent established pursuant to rather than set forth in a Board Resolution, an
Officer's Certificate detailing such establishment) or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the officers executing
such Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons. If temporary Securities of any series are issued as
permitted by Section 2.11, the form thereof also shall be established as
provided in the preceding sentence. If the forms of Securities and Coupons, if
any, of the series are established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an appropriate record
of any such action taken pursuant thereto, including a copy of the approved
form of Securities or Coupons, if any, shall be certified by the Secretary or
an Assistant Secretary of the Issuer and delivered to the Trustee at or prior
to the delivery of the Issuer Order contemplated by Section 2.4 for the
authentication and delivery of such Securities.
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The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The
-----------------------------------------------
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within mentioned
Subordinated Indenture.
--------------------------,
as Trustee
By
------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within mentioned
Subordinated Indenture.
-------------------------,
as Authenticating Agent
By
-----------------------
Authorized Signatory"
Section 2.3 Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with the Securities of each other series, but
all Securities issued hereunder and any Coupons and the payment of principal of
and interest on any Securities and of any Coupons shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in
Article XIII, to all Senior Indebtedness. There shall be established in or
pursuant to one or more Board Resolutions (and to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
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(2) any limit upon the aggregate principal amount of the Securities of
the 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
Section 2.8, 2.9, 2.11, 8.5, or 12.3);
(3) if other than Dollars, the coin or currency in which the Securities
of that series are denominated (including, but not limited to, any Foreign
Currency or ECU);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities, in whole or in
part, at its option and the period or periods within which, the price or prices
at which and any terms and conditions upon which Securities of the series may
be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such series are
to be payable, at the election of the Issuer or a Holder thereof, in a coin or
currency other than that in which the
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Securities are denominated, the period or periods within which, and the terms
and conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on
a coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as Registered
Securities or Unregistered Securities (with or without Coupons), and, whether
such Securities will be issuable in global form or any combination of the
foregoing, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if other than
as provided in Section 2.8, the terms upon and locations at which Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and vice versa;
(15) whether and under what circumstances the Issuer will pay additional
amounts on the Securities of the series held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(17) any Trustees, Depositaries, Authenticating Agents, paying or transfer
Agents or Registrars or any other agents with respect to the Securities of such
series;
(18) any deletions from, modifications of or additions to the Events of
Default or covenants with respect to the Securities of such series;
(19) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(20) the date as of which any Unregistered Securities of the series and
any temporary Security in global form representing Outstanding Securities of
the series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(21) the applicability, if any, to the Securities of or within the series
of Article X, or such other means of Defeasance or Covenant Defeasance as may
be specified for the Securities and Coupons, if any, of such series;
(22) if the Securities of the series shall be issued in whole or in part
in global form (a) the Depositary for such global Securities, (b) the form of
any legend in addition to or in lieu of that in Section 2.4 which shall be
borne by such global security, (c) whether beneficial owners of
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interests in any Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like tenor of any
authorized form and denomination, and (d) if other than as provided in
Section 2.8, the circumstances under which any such exchange may occur;
(23) the right of the Issuer, if any, to defer any payment of principal of
or interest on the Securities of the series, or any tranche thereof, and the
maximum length of any such deferral period; and
(24) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining thereto,
shall be substantially identical, except in the case of Registered Securities
as to denomination and except as may otherwise be provided by or pursuant to
the Board Resolution or Officer's Certificate referred to above or as set forth
in any such indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
Section 2.4 Authentication and Delivery of Securities. (1) The Issuer
-----------------------------------------
may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in
this Section) or pursuant to such procedures acceptable to the Trustee and to
such recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral electronic instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in the case of subparagraphs (b), (c) and (d) below only
at or before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, PROVIDED that, with respect to Securities of a series
subject to a Periodic Offering, (i) such Issuer Order may be delivered by the
Issuer to the trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (ii) the Trustee shall authenticate and
deliver Securities of such series for original issue from time to time, in
an aggregate principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order
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or pursuant to procedures acceptable to the Trustee as may be specified from
time to time by an Issuer Order, (iii) the maturity date or dates, original
issue date or dates, interest rate or rates and any other terms of Securities
of such series shall be determined by an Issuer Order or pursuant to such
procedures and (iv) if provided for in such procedures, such Issuer Order
may authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents, which
oral instructions shall be promptly confirmed in writing;
(b) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officer's Certificate setting forth the form or forms and
terms of the Securities and Coupons, if any, stating that the form or forms and
terms of the Securities and Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(d) At the option of the Issuer, either one or more Opinions of
Counsel, or a letter addressed to the Trustee permitting it to rely on one or
more Opinions of Counsel, substantially to the effect that:
(i) the forms of the Securities and Coupons, if any, have
been duly authorized and established in conformity with the provisions of this
Indenture;
(ii) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been established pursuant to
a Board Resolution, an Officer's Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the Issuer and
will have been established in conformity with the provisions of this
Indenture; and
(iii) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture, will
be entitled to the benefits of this Indenture, and will be valid and binding
obligations of the Issuer, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration, if any, and the availability of equitable remedies may
be limited by equitable principles of general applicability.
In rendering such opinions, any counsel may qualify any opinions
as to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
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considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he or she and the Trustee are
entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he or she has relied, to the extent he or she deems
proper, upon certificates of officers of the Issuer and its subsidiaries and
certificates of public officials.
(2) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
(3) If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in whole or in part in global form,
then the Issuer shall execute and the Trustee shall, in accordance with this
Section and the Issuer Order with respect to such series, authenticate and
deliver one or more Securities in global form that (a) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued and not yet canceled, (b) if
such Securities are Registered Securities, shall be registered in the name
of the Depositary for such Security or Securities in global form or the
nominee of such Depositary, (c) if such Securities are Registered Securities,
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (d) shall bear a legend substantially to the
following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
(4) Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
Section 2.5 Execution of Securities. The Securities and, if
-----------------------
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman or vice chairman of its Board of Directors or its
president or any executive, senior or other vice president or its treasurer,
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or
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disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Security or Coupon had not ceased to be such officer of the Issuer; and any
Security or Coupon may be signed on behalf of the Issuer by such persons as, at
the actual date of the execution of such Security or Coupon, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such Securities as
-----------------------------
shall bear thereon a certificate of authentication substantially in the form
herein before recited, executed by the Trustee by the manual signature of one
of its authorized officers, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
Section 2.7 Denomination and Date of Securities; Payments of
------------------------------------------------
Interest. The Securities of each series shall be issuable as Registered
- --------
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Issuer shall default in the payment of
the interest due on such interest payment date for such series, in which
case such defaulted interest shall be paid to the persons in whose names
Outstanding Registered Securities for such series are registered at the
close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities not less than 15 days preceding such
subsequent record date. The term "record date" as used with respect to any
interest payment date (except a
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date for payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Registered Securities of
such series established as contemplated by Section 2.3, or, if no such date is
so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day
of such calendar month, whether or not such record date is a Business Day.
Section 2.8 Registration, Transfer and Exchange. (1) The Issuer
-----------------------------------
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide
for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the
Trustee.
(2) Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities in global form) and Coupons (except for Coupons attached to any
temporary Unregistered Securities in global form) shall be transferable by
delivery.
(3)(a) At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Security in global form, except as set
forth below) may be exchanged for a Registered Security or Registered
Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. Whenever any Registered
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
(b) Unless otherwise specified as contemplated by Section
2.3, at the option of the Holder, Unregistered Securities of such series may be
exchanged for Registered Securities (if the Securities of such series are
issuable in registered form) or Unregistered Securities (if Unregistered
Securities of such series are issuable in more than one denomination and such
exchanges are permitted by such series) 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 the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the
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Holder of an Unregistered Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Unregistered Securities are accompanied by payment in funds
acceptable to the Issuer and the Trustee in an amount equal to the face amount
of such missing Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any paying agent harmless. If thereafter the Holder of such Security shall
surrender to any paying agent any such missing Coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment as provided in Section 3.2. Notwithstanding the
foregoing, in case any Unregistered Security of any series is surrendered at
any such office or agency in exchange for a Registered Security of the same
series after the close of business at such office or agency on (i) any record
date and before the opening of business at such office or agency on the
relevant interest payment date, or (ii) any special record date for payment of
defaulted interest and before the opening of business at such office or agency
on the related date for payment of defaulted interest, such Unregistered
Security shall be surrendered without the Coupon relating to such interest or
defaulted interest payment date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Unregistered Security, such
Coupon shall be returned to the person so surrendering the Unregistered
Security), and interest or defaulted interest, as the case may be, will not be
payable on such date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Unregistered
Security, but will be payable only to the Holder of such Coupon, when due in
accordance with the provisions of this Indenture.
(c) Registered Securities of any series may not be exchanged
for Unregistered Securities of such series unless (i) otherwise specified
pursuant to Section 2.3 and (ii) the Issuer has delivered to the Trustee an
Opinion of Counsel that (A) the Issuer has received from the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that the
inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no adverse Federal income tax effect to
the Issuer or to any Holder. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be canceled promptly and disposed of by
the Trustee and the Trustee will deliver a certificate of disposition thereof
to the Issuer.
(4) All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
16
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The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
(5) Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Securities in global form notifies
the Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4
for such Registered Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer's election pursuant to Section 2.3 that such Registered Securities
be represented by one or more Registered Securities in global form shall no
longer be effective and the Issuer will execute, and the Trustee, upon
receipt of an Officer's Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Security or Securities in global form
representing such Registered Securities in exchange for such Registered
Security or Securities in global form.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Registered Securities in global form shall no longer be represented by a
Registered Security or Securities in global form. In such event the Issuer
will execute, and the Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Security or
Securities in global form representing such Registered Securities, in
exchange for such Registered Security or Securities in global form.
If specified by the Issuer pursuant to Section 2.3 with respect
to Securities represented by a Registered Security in global form, the
Depositary for such Registered Security in global form may surrender such
Registered Security in global form in exchange in whole or in part for
Registered Securities of the same series in definitive form on such terms as
are acceptable
17
<PAGE>
to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(a) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Registered Security in global form; and
(b) to such Depositary a new Registered Security in global
form in a denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Security in global form and the aggregate
principal amount of Registered Securities authenticated and delivered pursuant
to clause (a) above.
Upon the exchange of a Registered Security in global form for
Registered Securities in definitive form without Coupons, in authorized
denominations, such Registered Security in global form shall be canceled by
the Trustee or an agent of the Issuer or the Trustee. Registered Securities in
definitive form issued in exchange for a Registered Security in global form
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Security in
global form, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
(6) All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(7) Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
----------------------------------------------
Securities. In case any Security or any Coupon appertaining to any Security
- ----------
shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated,
18
<PAGE>
defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Issuer and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and
of the ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer 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) or its agent connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10 Cancellation of Securities; Destruction Thereof. All
-----------------------------------------------
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be
canceled by it; and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee or its agent shall dispose of canceled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If the Issuer or
its agent shall acquire any of the Securities or Coupons, such acquisition
shall not operate as a redemption
19
<PAGE>
or satisfaction of the indebtedness represented by such Securities or Coupons
unless and until the same are delivered to the Trustee or its agent for
cancellation.
Section 2.11 Temporary Securities. Pending the preparation of
--------------------
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 3.2, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series, unless
otherwise established pursuant to Section 2.3. The provisions of this Section
are subject to any restrictions or limitations on the issue and delivery of
temporary Unregistered Securities of any series that may be established
pursuant to Section 2.3 (including any provision that Unregistered Securities
of such series initially be issued in the form of a single Unregistered
Security in global form to be delivered to a Depositary or agency located
outside the United States and the procedures pursuant to which Unregistered
Securities in definitive or global form of such series would be issued in
exchange for such temporary Unregistered Security in global form).
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal, Premium and Interest. The Issuer
------------------------------------------
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and premium, if
any, and interest on, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and in this
Indenture. The interest on Securities with Coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such
20
<PAGE>
interest installments as are evidenced thereby as they severally mature. If
any temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders thereof and, at the
option of the Issuer, may be paid by wire transfer or by mailing checks for
such interest payable to or upon the written order of such Holders at their
last addresses as they appear on the registry books of the Issuer.
Section 3.2 Offices for Payments, Etc. So long as any Securities
-------------------------
are issued as Registered Securities, the Issuer will maintain in the Borough
of Manhattan, the City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities
of each series may be presented for exchange as is provided in this Indenture
and, if applicable, pursuant to Section 2.3 and where the Registered Securities
of each series may be presented for registration of transfer as in this
Indenture provided.
So long as any Securities are issued as Unregistered Securities, the
Issuer will maintain one or more offices or agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if
any, of each series and Coupons, if any, appertaining thereto may be presented
for payment. No payment on any Unregistered Security or Coupon will be made
upon presentation of such Unregistered Security or Coupon at an agency of the
Issuer within the United States nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such payment can
be made without adverse tax consequences to the Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in Borough of Manhattan, the City of New York
if such payment in Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in Borough of Manhattan, the City of New York,
an office or agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto or this
Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section, or shall
fail to give such notice of the location or of any change in the location of
any of the above agencies, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Trustee.
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The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
Section 3.3 Money for Security Payments to be Held in Trust;
------------------------------------------------
Unclaimed Money. If the Issuer shall at any time act as its own paying agent,
- ---------------
it will, on or before each due date of the principal of and premium, if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Holders or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more paying agents, it will, on
or prior to each due date of the principal of and premium, if any, or interest
on any Securities, deposit with the paying agent or paying agents a sum
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held in trust for the benefit of the Holders entitled to such
principal, premium, if any, or interest, and, unless such paying agent is the
Trustee, the Issuer will promptly notify the Trustee of its action or failure
so to act.
The Issuer will cause each paying agent 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:
(1) hold all sums held by it for the payment of the principal of
and premium, if any, or interest on Securities in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Holders (or any
other obligor upon the Securities) in the making of any payment of principal
and premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any paying agent to pay, to the Trustee all sums held in
trust by the Issuer 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 Issuer or
such
22
<PAGE>
paying agent and, upon such payment by any paying agent to the Trustee, such
paying agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any paying agent, or then held
by the Issuer in trust for the payment of the principal of and premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall be
paid to the Issuer on Issuer Order, or, if then held by the Issuer, shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Issuer for payment thereof,
and all liability of the Trustee or such paying agent with respect to such
trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such paying agent,
-------- -------
before being required to make any such repayment, may at the expense of the
Issuer cause to be published at least once, in an Authorized Newspaper in the
Borough of Manhattan, the City of New York, and at least once in an Authorized
Newspaper in London, 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 Issuer.
Section 3.4 Statements of Officers of Issuer as to Default; Notice
------------------------------------------------------
of Default. (1) The Issuer will deliver to the Trustee, within 120 days after
- ----------
the end of each fiscal year of the Issuer ending after the date hereof, a
certificate, signed by the principal executive officer, principal financial
officer, or principal accounting officer, stating whether or not to the best
knowledge of the signers thereof the Issuer is in default (without regard to
periods of grace or requirements of notice) in the performance and observance
of any of the terms, provisions and conditions hereof, and if the Issuer shall
be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
(2) The Issuer shall file with the Trustee written notice of the
occurrence of any default or Event of Default within five Business Days of its
becoming aware of any such default or Event of Default.
Section 3.5 Existence. Subject to Article IX, the Issuer will do
---------
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises and those
of each of its Subsidiaries; PROVIDED, HOWEVER, that the Issuer shall not be
-------- -------
required to preserve any such right or franchise if its Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuer or the business of any Subsidiary and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 3.6 Maintenance of Properties. The Issuer will cause all
-------------------------
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED,
--------
23
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HOWEVER, that nothing in this Section shall prevent the Issuer from
- -------
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Issuer, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 3.7 Payment of Taxes and Other Claims. The Issuer shall
---------------------------------
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon the Issuer or any Subsidiary or upon the income,
profits or property of the Issuer or any Subsidiary, 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 Issuer or any Subsidiary; PROVIDED,
--------
HOWEVER, that the Issuer shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have been made.
Section 3.8 Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Issuer will execute and deliver such further instruments and
perform such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
Section 3.9 Luxembourg Publications. In the event of the
-----------------------
publication of any notice pursuant to Section 3.3, 5.11, 6.10, 6.11, 8.2 or
12.2, the party making such publication in the Borough of Manhattan, the City
of New York and London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable Luxembourg law or
stock exchange regulation, as evidenced by an Officer's Certificate delivered
to such party, make a similar publication in Luxembourg.
Section 3.10 Commission Reports. The Issuer shall file with the
------------------
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the Commission, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. The
Trustee shall be under no obligation to analyze or make any credit decisions
with respect to reports or other information received by it pursuant to this
section, but shall hold such reports and other information solely for the
benefit of, and review by, the security holders.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and
-----------------------------------------------------
Addresses of Securityholders. If and so long as the Trustee shall not be the
- ----------------------------
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Registered Securities of such series
pursuant to Section 312
24
<PAGE>
of the Trust Indenture Act of 1939 (1) semi-annually not more than 5 days after
each record date for the payment of interest on such Registered Securities, as
hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing Registered Securities in each
year, and (2) at such other times as the Trustee may request in writing, within
thirty days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished.
Section 4.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
(1) 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 4.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar or paying agent. The Trustee may destroy any list furnished to it as
provided in Section 4.1 upon receipt of a new list so furnished.
(2) 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 by the
Trust Indenture Act of 1939.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of any of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Sections 4.1 and 4.2(2), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 4.2(2).
Section 4.3 Reports by the Trustee. Any Trustee's report required
----------------------
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted
within 60 days after May 15 in each year beginning May 15, ____, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities
are Outstanding hereunder, and shall be dated as of May 15, if required by and
in compliance with Section 313(a) of the Trust Indenture Act of 1939.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity;
---------------------------------------------------
Waiver of Default. "Event of Default" with respect to Securities of any series
- -----------------
wherever used herein, means each one of the following events which shall have
occurred and be continuing (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):
(1) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
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<PAGE>
(2) default in the payment of all or any part of the principal of,
or premium, if any, on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon any redemption, by
declaration or otherwise; or
(3) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the Securities of
such series; or
(4) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer in the
Securities of such series (other than a covenant or agreement in respect of the
Securities of such series a default in the performance or breach of which is
elsewhere in this Section specifically dealt with) or contained in this
Indenture (other than a covenant or agreement included in this Indenture solely
for the benefit of a series of Securities other than such series) for a period
of 60 days after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and demanding that
the Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the holders of at least 25% in aggregate principal amount of
the Outstanding Securities of all series affected thereby; or
(5) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Issuer or any Restricted
Subsidiary as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Issuer or any Restricted Subsidiary under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, and such decree or order shall have continued undischarged and unstayed
for a period of 120 days; or a decree or order of a court having jurisdiction
in the premises for the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of the Issuer or any Restricted Subsidiary
or of its or their property, or for the winding up or liquidation of its or
their affairs, shall have been entered, and such decree or order shall have
remained in force and unstayed for a period of 120 days; or
(6) the Issuer or any Restricted Subsidiary shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or any Restricted Subsidiary
or for any substantial part of its or their property, or make any general
assignment for the benefit of creditors or shall admit in writing its inability
to pay its or their respective debts generally as they become due; or
(7) an event of default, as defined in any one or more mortgages,
indentures, instruments, bonds, debentures, notes or other similar instruments
under which there may be issued, or by which there may be secured or evidenced,
any indebtedness (other than the Securities of such series or nonrecourse
obligations) ("Indebtedness") in excess of $10,000,000 for money borrowed by
the Issuer or a Restricted Subsidiary shall occur, if such event of default
shall result in the acceleration of such Indebtedness prior to its expressed
maturity unless such Indebtedness is discharged or such acceleration is cured,
waived, rescinded or annulled within 10
26
<PAGE>
days after written notice thereof shall have been given by registered or
certified mail, return receipt requested, to the Issuer by the Trustee or to
the Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities (treated as one class) which
notice shall state that it is a "Notice of Default" hereunder; or
(8) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the form of
Security for such series; PROVIDED that if any such default or acceleration
referred to in clause (7) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon cured.
If an Event of Default described in clause (1), (2), (3), (4) or (8)
(if the Event of Default under clause (4) or (8), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (4) or (8) (if the Event of Default under
clause (4) or (8), as the case may be, is with respect to all series of
Securities then Outstanding) or (7) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding, and interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event
of Default specified in clause (5) or (6) occurs, all unpaid principal
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in the terms thereof) of all the Securities
then Outstanding, and interest accrued thereon, if any, shall be due and
payable immediately, without any declaration or other act on the part of the
Trustee or any Securityholder.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of such series (or of all the Securities, as the case may
be) and the principal of any and all Securities of each such series (or of all
the
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Securities, as the case may be) which shall have become due otherwise than
by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, its
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and payment of such
portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee May
--------------------------------------------------
Prove Debt. (1) The Issuer covenants that (a) in case default shall be made in
- ----------
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise, then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due and payable on all
Securities of such series, and such Coupons, for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred,
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<PAGE>
and all advances made, by the Trustee and each predecessor Trustee except as a
result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such series be overdue.
(2) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated
the moneys adjudged or decreed to be payable.
(3) In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the
creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the
29
<PAGE>
Securityholders and of the Trustee on their behalf; and any trustee, receiver,
or liquidator, custodian or other similar official is hereby authorized by each
of the Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(4) All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of
any of such Securities or Coupons or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
(5) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by the
-----------------------
Trustee pursuant to this Article in respect of any series shall, subject to the
subordination provisions hereof, be applied in the following order at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys
on account of principal or interest, upon presentation of the several
Securities and Coupons appertaining to such Securities in respect of which
monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially paid, or
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their respective
agents and attorneys and of all expenses and liabilities
30
<PAGE>
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest
upon the overdue principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or priority of
principal over interest or Yield to Maturity, or of interest or Yield to
Maturity over principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
Section 5.4 Suits for Enforcement. In case an Event of Default has
---------------------
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of Proceedings.
---------------------------------------------------
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Issuer and the Trustee shall be restored respectively
to their former positios and right hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No Holder of
---------------------------------------
any Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any
31
<PAGE>
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 5.9;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security or Coupon with every other taker and Holder and
the Trustee, that no one or more Holders of Securities of any series or
Coupons appertaining to such Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other such Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all Holders of Securities of the
applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to Institute
---------------------------------------------------
Certain Suits. Notwithstanding any other provision in this Indenture and any
- -------------
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon, or to
institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the consent of such
Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not
-----------------------------------------------------
Waiver of Default. Except as provided in Section 5.6, no right or remedy
- -----------------
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised
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from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Holders of Securities or Coupons.
Section 5.9 Control by Holders of Securities. The Holders of a
--------------------------------
majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding 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 by this Indenture; PROVIDED that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture PROVIDED FURTHER that (subject to the provisions of Section 6.1) the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the acceleration of
-----------------------
the maturity of any Securities as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which an Event of Default shall have occurred
and be continuing, may (voting as a single class) on behalf of the Holders of
all such Securities waive any past default or Event of Default described in
Section 5.1 and its consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the Issuer,
the Trustee and the Holders of all such Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 5.11 Trustee to Give Notice of Default, but May Withhold in
------------------------------------------------------
Certain Circumstances. The Trustee shall, within ninety days after the
- ---------------------
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known
33
<PAGE>
to the Trustee (1) if any Unregistered Securities of that series are then
Outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, the City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.09, at least once in an Authorized Newspaper in Luxembourg) and (2) to all
Holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act of 1939, unless in each case such
defaults shall have been cured before the mailing or publication of such notice
(the term "defaults" for the purpose of this Section being hereby defined to
mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); PROVIDED that, except in the case of
default in the payment of the principal of or interest on any of the Securities
of such series, or in the payment of any sinking fund installment on such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee
of directors or trustees and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of
the Securityholders of such series.
Section 5.12 Right of Court to Require Filing of Undertaking to Pay
------------------------------------------------------
Costs. All parties to this Indenture agree, and each Holder of any Security or
- -----
Coupon by 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, 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 Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause (4) or (8) of Section 5.1 (if
the suit relates to Securities of more than one but less than all series), 10%
in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (4) or
(8) (if the suit under clause (4) or (8) relates to all the Securities then
Outstanding), (5), (6) or (7) of Section 5.1, 10% in aggregate principal amount
of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During
--------------------------------------------------
Default; Prior to Default. (1) With respect to the Holders of any series of
- -------------------------
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of
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<PAGE>
Securities such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(2) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
(d) the Trustee shall not be required to take notice, and
shall not be deemed to have notice, of any default or Event of Default
hereunder, except Events of Default described in paragraphs (1), (2) and (3)
of Section 5.1 hereof, unless the Trustee shall be notified specifically of the
default or Event of Default on a written instrument or document delivered to it
at its notice address by the Issuer or by the Holders of at least 10% of the
aggregate principal amount of Securities then outstanding. In the absence of
delivery of notice satisfying those requirements, the Trustee may assume
conclusively that there is no default or Event of Default, except as noted.
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(3) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act of 1939.
Section 6.2 Certain Rights of the Trustee. In furtherance of and
-----------------------------
subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, 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;
(2) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(3) the Trustee may consult with legal counsel of its choice or
other experts, and the advice of such experts within the scope of such expert's
area of expertise or opinion of counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion;
(4) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(5) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(6) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected by such Event of Default and
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then Outstanding; PROVIDED that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the Issuer or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon
demand; and
(7) 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 such agent or attorney appointed with due care by
it hereunder.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of
----------------------------------------------------
Securities or Application of Proceeds Thereof. The recitals contained herein
- ---------------------------------------------
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of any
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
Section 6.4 Trustee and Agents May Hold Securities or Coupons;
--------------------------------------------------
Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in
- -----------------
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions of
----------------------
Section 3.3 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Issuer also covenants to indemnify the Trustee,
each predecessor Trustee and their respective
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directors, officers, employees, and agents (the "indemnitees") for, and to
hold the indemnitees harmless against, any loss, liability, claim, damage,
penalty, fine or expense, including reasonable out-of-pocket expenses,
reasonable incidental expenses and reasonable legal fees incurred without
negligence or bad faith on the indemnitees' part, arising out of or in
connection with the acceptance or administration of this Indenture or the
trusts hereunder and the indemnitees' duties hereunder, including the costs
and expenses of defending themselves against or investigating any claim of
liability in connection with the exercise or performance of its duties or
obligations hereunder. The obligations of the Issuer under this Section to
compensate and indemnify the indemnitees and to pay or reimburse the
indemnitees for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be
a senior claim to that of the Securities upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities or Coupons, and the
Securities are hereby subordinated to such senior claim.
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc.
------------------------------------------------------
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer's Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
Section 6.8 Indentures Not Creating Potential Conflicting Interests
-------------------------------------------------------
for the Trustee. The following indentures are hereby specifically described
- ---------------
for the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: this
Indenture with respect to the Securities of any series.
Section 6.9 Persons Eligible for Appointment as Trustee. The
-------------------------------------------
Trustee for each series of Securities hereunder shall at all times be a
corporation or banking association organized and doing business under the laws
of the United States of America or of any State or the District of Columbia
having a combined capital and surplus of at least $5,000,000, and which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal, State or District of Columbia authority.
Such corporation or banking association shall have a place of business or an
affiliate with a place of business in the Borough of Manhattan, the City
of New York if there be such a corporation or association in such
location willing to act upon reasonable and customary terms and
conditions. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
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The provisions of this Section 6.9 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
Section 6.10 Resignation and Removal; Appointment of Successor
-------------------------------------------------
Trustee. (1) The Trustee, or any trustee or trustees hereafter appointed,
- -------
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer and (a) if any
Unregistered Securities of a series affected are then Outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least once
in an Authorized Newspaper in the
Borough of Manhattan, the City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.09, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a
series affected are then Outstanding, by mailing notice of such resignation to
the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 at such
addresses as were so furnished to the Trustee and (c) by mailing notice of such
resignation to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books.
Upon receiving such notice of resignation, the Issuer shall promptly appoint a
successor Trustee or Trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee or Trustees. If no successor Trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee, or any Securityholder who has been a bona fide Holder of
a Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself or herself and
all others similarly situated, petition any such court for the appointment of
a successor Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor Trustee.
(2) In case at any time any of the following shall occur:
(a) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months; or
(b) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and Section 310(a) of the Trust Indenture
Act of 1939 and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(c) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged bankrupt or
insolvent, or a receiver or liquidator 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;
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then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a successor Trustee
for such series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939,
any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months may on behalf of himself or herself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper, remove the Trustee and appoint a
successor Trustee.
(3) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by such
Securityholders.
(4) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor Trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor Trustee as provided in Section
6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any
----------------------------------------------
successor Trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as Trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor Trustee, upon payment of
its charges then unpaid, the Trustee ceasing to act shall, subject to Section
3.3, pay over to the successor Trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor Trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor Trustee all such rights and powers. Any Trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the
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predecessor Trustee, and 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 under separate indentures.
No successor Trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 6.9.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the Issuer shall give notice thereof (1) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof,
by publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, the City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.09, at least once in an
Authorized Newspaper in Luxembourg), (2) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (3) if any Registered
Securities of a series affected are then Outstanding, to the Holders thereof,
by mailing such notice to such Holders at their addresses as they shall appear
on the registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 6.10.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED that such
corporation shall be qualified under Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 6.9, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have;
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PROVIDED, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities of any series in the name
of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
----------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust
Indenture Act of 1939 to the extent indicated therein.
Section 6.14 Appointment of Authenticating Agent. As long as any
-----------------------------------
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to 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 for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $5,000,000 (determined as provided in
Section 6.9 with respect to the Trustee) and subject to supervision or
examination by Federal or State authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to
the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time reasonable
compensation. The
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Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders.
-------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive
in favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
Section 7.2 Proof of Execution of Instruments and of Holding of
---------------------------------------------------
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
- ----------
by a Security holder or his or her agent or proxy may be proved in the
following manner:
(1) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him or her the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where such
execution is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same.
(2) The fact of the holding by any Holder of an Unregistered
Security of any series, and the identifying number of such Security and the
date of his or her holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was deposited
with or exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities of one or more series
specified therein. The holding by the person named in any such certificate of
any Unregistered Securities of any series specified therein shall be presumed
to continue for a period of one year from the date of such certificate unless
at the time of any determination of such holding (a) another certificate
bearing a later date issued in respect of the same Securities shall be
produced, or (b) the Securities of such series specified in such certificate
shall be produced by some other person, or (c) the Securities of
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such series specified in such certificate shall have ceased to be Outstanding.
Subject to Sections 6.1 and 6.2, the fact and date of the execution of any
such instrument and the amount and numbers of Securities of any series held
by the person so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee for
such series or in any other manner which the Trustee for such series may
deem sufficient.
(3) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to
vote or consent to any action referred to in Section 7.1, which record date
may be set at any time or from time to time by notice to the Trustee, for any
date or dates (in the case of any adjournment or reconsideration) not more
than 60 days nor less than five days prior to the proposed date of such vote
or consent, and thereafter, notwithstanding any other provisions hereof, with
respect to Registered Securities of any series, only Holders of Registered
Securities of such series of record on such record date shall be entitled to
so vote or give such consent or revoke such vote or consent.
Section 7.3 Holders to Be Treated as Owners. The Issuer, the
-------------------------------
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall
be affected by any notice to the contrary. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may treat the Holder of any Unregistered
Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security
or Coupon shall be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes and neither the Issuer, the
Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or
upon his or her order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Unregistered Security or Coupon.
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding.
-------------------------------------------------
In determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only
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Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that the
pledgee is not the Issuer or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officer's Certificate listing and
identifying all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above-described Persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officer's
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.
Section 7.5 Right of Revocation of Action Taken. At any time
-----------------------------------
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office
and upon proof of holding as provided in this Article, revoke such action so
far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with
such action shall be conclusively binding upon the Issuer, the Trustee and
the Holders of all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
------------------------------------------
Securityholders. (1) The Issuer, when authorized by a resolution of its Board
- ---------------
of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto which comply with the Trust Indenture Act of
1939, as then in effect, for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property or
assets;
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(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article IX;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; PROVIDED, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement upon such an
Event of Default or may limit the remedies available to the Trustee upon such
an Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such an
Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may deem
necessary or desirable, PROVIDED that no such action shall adversely affect
the interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series
or of the Coupons appertaining to such Securities as permitted by Sections 2.1
and 2.3; and
(f) 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.
(2) The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
(3) Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 Supplemental Indentures With Consent of
---------------------------------------
Securityholders. (1) With the consent (evidenced as provided in Article VII)
- ---------------
of the Holders of not less than a majority in
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aggregate principal amount of the Securities at the time Outstanding of all
series affected by such supplemental indenture (voting as one class), the
Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto, which comply with the Trust Indenture Act of 1939, as
then in effect, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series or of the Coupons appertaining
to such Securities; PROVIDED, that no such supplemental indenture shall
(a) extend the final maturity of any then issued Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption thereof,
or make the principal thereof (including any amount in respect of original
issue discount), or interest thereon payable in any coin or currency other
than that provided in such Securities and any Coupons thereon or in
accordance with the terms thereof, or reduce the amount of the principal
of a then issued Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to Section
5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or
alter the provisions of Section 11.11 or 11.12 or impair or affect the right
of any Securityholder to institute suit for the payment thereof or, if such
Securities provide therefor, any right of repayment at the option of the
Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the percentage in principal amount of
then issued Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the
Holders of each Security so affected.
(2) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series, or of Coupons appertaining to such Securities, with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
(3) Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms
of such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
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(4) It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(5) Promptly after the execution by the Issuer and the Trustee
of any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (a) if any Registered Securities of a series
affected thereby are then Outstanding, to the Holders thereof, by mailing a
notice thereof by first-class mail to such Holders at their addresses as they
shall appear on the Security register, (b) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act of 1939, by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so furnished to the Trustee and
(c) if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, the City
of New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.09, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the
--------------------------------
execution of any supplemental indenture pursuant to the provisions
hereof, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Issuer and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee,
--------------------------------
subject to the provisions of Sections 6.1 and 6.2, shall be entitled to
receive, and shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article VIII complies with
the applicable provisions of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
-------------------------------------------------
Indentures. Securities of any series authenticated and delivered after the
- ----------
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
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Section 8.6 Subordination Unimpaired. This Indenture may not be
------------------------
amended to alter the subordination of any of the Outstanding Securities
without the written consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby.
Section 8.7 Conformity with Trust Indenture Act of 1939. Every
-------------------------------------------
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act of 1939 as then in effect.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms.
---------------------------------------------------
The Issuer shall not consolidate with or merge into another Person or sell
other than for cash or lease all or substantially all its assets to another
Person, or purchase all or substantially all the assets of another Person,
unless:
(1) either the Issuer is the continuing Person, or the successor
Person (if other than the Issuer) expressly assumes by supplemental indenture
the obligations evidenced by the Securities (in which case, except in the case
of such a lease, the Issuer will be discharged therefrom), and
(2) immediately thereafter, the Issuer or the successor Person (if
other than the Issuer) would not be in default in the performance of any
covenant or condition contained herein.
Section 9.2 Successor Substituted for the Issuer. Upon any
------------------------------------
consolidation of the Issuer with, or merger of the Issuer into, any other
Person or any conveyance, transfer or lease of the properties and assets of
the Issuer substantially as an entirety in accordance with Section 9.1, the
successor Person formed by such consolidation or into which the Issuer 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 Issuer
under this Indenture with the same effect as if such successor Person had been
named as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Section 9.3 Restrictions on Certain Dispositions. As long as any
------------------------------------
of the Securities remain Outstanding, the Issuer will not, and will not
permit any Restricted Subsidiary to, issue, sell, assign, transfer or
otherwise dispose of, directly or indirectly, any of the Voting Stock of any
Restricted Subsidiary, unless:
(1) the issuance, sale, assignment, transfer or other disposition
is required to comply with the order of a court or regulatory authority of
competent jurisdiction, other than an order issued at the request of the Issuer
or of one of its Restricted Subsidiaries;
(2) the shares of Voting Stock issued, sold, assigned, transferred
or otherwise disposed of constitute directors' qualifying shares;
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(3) all of the Voting Stock of a Restricted Subsidiary then owned
by the Issuer or by its Restricted Subsidiaries is disposed of in a single
transaction or in a series of related transactions, for a consideration
consisting of cash or other property the fair market value of which
(as determined in good faith by the Board of Directors) is at least
equal to the Fair Value of such Voting Stock; or
(4) after giving effect to the issuance sale, assignment, transfer
or other disposition, the Issuer and its Restricted Subsidiaries would own
directly or indirectly at least 80% of the issued and outstanding Voting Stock
of such Restricted Subsidiary and such issuance, sale, assignment, transfer or
other disposition is made for a consideration consisting of cash or other
property which is at least equal to the Fair Value of such Voting Stock.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the
---------------------------------------------
Indenture. (1) This Indenture shall upon an Issuer Order cease to be of
- ---------
further effect with respect to Securities of or within any series and any
Coupons appertaining thereto (except as to any surviving rights of
registration of transfer or exchange of such Securities and replacement of
such Securities which may have been lost, stolen or mutilated as herein
expressly provided for) and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any Coupons appertaining
thereto when
(a) either
(i) all such Securities previously authenticated and
delivered and all Coupons appertaining thereto (other than (A)
such Coupons appertaining to Unregistered Securities surrendered
in exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been waived
as provided in Section 2.8, (B) such Securities and Coupons
which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9, (C) such Coupons
appertaining to Unregistered Securities called for redemption
and maturing after the date fixed for redemption thereof,
surrender of which has been waived as provided in Section 12.3
and (D) such Securities and Coupons for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust as provided in Section 3.3) have been
delivered to the Trustee for cancellation; or
(ii) all Securities of such series and, in the case
of (X) or (Y) below, all Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (X) have
become due and payable, or (Y) will become due and payable
within one year, or (Z) if redeemable at the option of the
Issuer, 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
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the expense, of the Issuer, and the Issuer, in the case of
(X), (Y) or (Z) above, has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies or currency
unit or units in which the Securities of such series
are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such Coupons not theretofore
delivered to the Trustee for cancellation, for principal,
premium, if any, and interest, with respect thereto, to the
date of such deposit (in the case of Securities which have
become due and payable) or maturity date or redemption date, as
the case may be;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(c) the Issuer 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 as to such series have been complied
with.
(2) Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Issuer to the Trustee and any predecessor
Trustee under Section 6.6, the obligations of the Issuer to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to (1)(a)(ii) of this Section, the obligations of the
Trustee under Section 10.2 and the last paragraph of Section 3.3 shall
survive.
Section 10.2 Application of Trust Funds. Subject to the provisions
--------------------------
of the last paragraph of Section 3.3, all money deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the Coupons and this
Indenture, to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent) as the Trustee may
determine, to the Persons entitled thereto of the principal, premium, if any
and any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
Section 10.3 Applicability of Defeasance Provisions; Issuer's
--------------------------------------------------
Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section
- --------------------------------------------------
2.3 provision is made for either or both of (1) defeasance of the Securities of
or within a series under Section 10.4 or (2) covenant defeasance of the
Securities of or within a series under Section 10.5, then the provisions of
such Section or Sections, as the case may be, together with the provisions of
Sections 10.6 through 10.9 inclusive, with such modifications thereto as may
be specified pursuant to Section 2.3 with respect to any Securities, shall be
applicable to such Securities and any Coupons appertaining thereto, and the
Issuer may at its option by or pursuant to Board Resolution, at any time,
with respect to such Securities and any Coupons appertaining thereto, elect
to have Section 10.4 (if applicable) or Section 10.5 (if applicable) be
applied to such Outstanding Securities and any Coupons appertaining thereto
upon compliance with the conditions set forth below in this Article.
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Section 10.4 Defeasance and Discharge. Upon the Issuer's exercise
------------------------
of the option specified in Section 10.3 applicable to this Section with respect
to the Securities of or within a series, the Issuer shall be deemed to have
been discharged from its obligations with respect to such Securities and any
Coupons appertaining thereto on and after the date the conditions set forth
in Section 10.6 are satisfied (hereinafter "defeasance"). For this purpose,
such defeasance means that the Issuer shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and
any Coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 10.7 and the other Sections of
this Indenture referred to in clause (2) of this Section, and to have satisfied
all its other obligations under such Securities and any Coupons appertaining
thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Issuer, shall on an Issuer Order execute proper instruments acknowledging the
same), except the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities and any
Coupons appertaining thereto to receive, solely from the trust funds described
in Section 10.6(1) and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest, if any, on such
Securities or any Coupons appertaining thereto when such payments are due; (2)
the Issuer's obligations with respect to such Securities under Sections 2.8,
2.9, 3.2 and 3.3 and with respect to the payment of additional amounts, if any,
payable with respect to such Securities as specified pursuant to Section 2.3;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (4) this Article X. Subject to compliance with this Article X, the Issuer
may exercise its option under this Section notwithstanding the prior exercise
of its option under Section 10.5 with respect to such Securities and any
Coupons appertaining thereto. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
Section 10.5 Covenant Defeasance. Upon the Issuer's exercise of
-------------------
the option specified in Section 10.3 applicable to this Section with respect
to any Securities of or within a series, the Issuer shall be released from
its obligations under Section 9.1 and 3.5 and, if specified pursuant to
Section 2.3, its obligations under any other covenant with respect to such
Securities and any Coupons appertaining thereto on and after the date the
conditions set forth in Section 10.6 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 9.1 and 3.5 or such
other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to such Securities and any Coupons appertaining thereto, the
Issuer may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference
in any such Section or such other covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a
default or an Event of Default under Section 5.1(4) or (8) or otherwise, as
the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any Coupons appertaining thereto shall be
unaffected thereby.
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Section 10.6 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of Section 10.4 or
Section 10.5 to any Securities of or within a series and any Coupons
appertaining thereto:
(1) The Issuer shall have deposited or caused to be deposited
irrevocably with the Trustee (or another Trustee satisfying the requirements
of Section 6.9 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 10.3 through 10.9 inclusive and the
last paragraph of Section 3.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making
the payments referred to in clauses (X) and (Y) of this Section 10.6(1),
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities and any Coupons appertaining thereto,
with instructions to the Trustee as to the application thereof,
(a) money in an amount (in such currency, currencies or
currency unit or units in which such Securities and any Coupons appertaining
thereto are then specified as payable at maturity), or (b) if Securities of
such series are not subject to repayment at the option of Holders, U.S.
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment referred to in clause (X) or (Y)
of this Section 10.6(1), money in an amount or (c) a combination thereof in
an amount sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (X) the principal of, premium,
if any, and interest, if any, on Securities and any Coupons appertaining
thereto on the maturity of such principal or installment of principal or
interest and (Y) any mandatory sinking fund payments applicable to such
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities and any
Coupons appertaining thereto. Before such a deposit the Issuer may make
arrangements satisfactory to the Trustee for the redemption of Securities at
a future date or dates in accordance with Article XII which shall be given
effect in applying the foregoing.
(2) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default or Event of Default under,
this Indenture or result in a breach or violation of, or constitute a default
under, any other material agreement or instrument to which the Issuer is a
party or by which it is bound.
(3) In the case of an election under Section 10.4, the Issuer
shall have delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel to the effect that (a) the Issuer has received from, or there has
been published by, the Internal Revenue Service a ruling, or (b) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Securities
and any Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit, defeasance
and discharge had not occurred.
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(4) In the case of an election under Section 10.5, the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities and any Coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(5) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 10.4 or the covenant defeasance
under Section 10.5 (as the case may be), including those contained in this
Section 10.6 other than the 90 day period specified in Section 10.6(7),
have been complied with.
(6) This Issuer shall have delivered to the Trustee an Officer's
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.
(7) 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(5) and (6), 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).
(8) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940 unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Issuer in connection therewith as contemplated by
Section 2.3.
Section 10.7 Deposited Money and U.S. Government Obligations to be
-----------------------------------------------------
Held in Trust. Subject to the provisions of the last paragraph of Section 3.3,
- -------------
all money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 2.3) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 10.6 in respect of any Securities of any series
and any Coupons appertaining thereto shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent) as the Trustee may determine, to the Holders of such Securities
and any Coupons appertaining thereto of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if any, but
such money need not be segregated from other funds except to the extent
required by law.
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Section 10.8 Repayment to Issuer. The Trustee (any paying agent)
-------------------
shall promptly pay to the Issuer upon Issuer Order any excess money or
securities held by them at any time.
Section 10.9 Indemnity For U.S. Government Obligations. The
-----------------------------------------
Issuer shall pay, and shall indemnify the Trust against, any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations deposited
pursuant to this Article or the principal and interest and any other amount
received on such U.S. Government Obligations.
Section 10.10 Reimbursement. 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 government
authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities from which the
Issuer has been discharged or released pursuant to Section 10.4 or 10.5 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 10.7 with respect to such Securities in accordance with this Article;
PROVIDED, HOWEVER, that if the Issuer makes any payment of principal of or
any premium or interest on any such Security following such reinstatement of
its obligations, the Issuer 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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers and Directors
---------------------------------------------------
Of Issuer Exempt from Individual Liability. No recourse under or upon any
- ------------------------------------------
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance of the Securities and
the Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
Section 11.2 Provisions of Indenture for the Sole Benefit of
-----------------------------------------------
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
- ---------------------------------------------
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if any, any legal
or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors, the
holders of the Senior Indebtedness and of the Holders of the Securities or
Coupons, if any.
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Section 11.3 Successors and Assigns of Issuer Bound by Indenture.
---------------------------------------------------
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of
-----------------------------------------------------
Securities and Coupons. Any notice or demand which by any provision of this
- ----------------------
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Ohio Casualty
Corporation, Attention: Chief Financial Officer, 136 North Third Street,
Hamilton, Ohio 45025. Any notice, direction, request or demand by the Issuer
or any Holder of Securities or Coupons to or upon the Trustee shall be deemed
to have been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to Chase Manhattan Trust Company, National Association, Chase Financial Tower,
250 West Huron Road, Suite 220, Cleveland, Ohio 44113, Attn: Corporate Trust
Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his or her last address as it appears in the
Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice.
Section 11.5 Officer's Certificates and Opinions of Counsel;
-----------------------------------------------
Statements to Be Contained Therein. Upon any application or demand by the
- -----------------------------------
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent 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
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition,
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (3) a statement that, in the opinion of
such person, he or she has made such examination 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 (4) a statement
as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his or her certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same
are erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which
is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such
counsel actually knows that the certificate, statement or opinion or
representations with respect to the matters upon which his or her certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays. If
------------------------------------------------
the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption
or repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act of 1939. If and to the extent that any provision of this
- ----------------------
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this
Indenture by
57
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operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
Section 11.8 New York Law to Govern. This Indenture and each
-----------------------
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes
shall be construed in accordance with the laws of such State, except as may
otherwise be required by mandatory provisions of law.
Section 11.9 Counterparts. This Indenture may be executed in any
------------
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 11.10 Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 11.11 Securities in a Foreign Currency or in ECU. Unless
------------------------------------------
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then
the principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate.
For purposes of this Section 11.11, Market Exchange Rate shall mean the noon
Dollar buying rate in New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined
by the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such currency,
the Trustee shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York or, in the case
of ECUs, the rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs, rates of
exchange from one or more major banks in the City of New York or in the
country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECU,
rates of exchange as the Trustee shall deem appropriate. The provisions of
this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars
in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture including without limitation any determination
contemplated in Section 5.1(7).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion
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and shall, in the absence of manifest error, be conclusive to the extent
permitted by law for all purposes and irrevocably binding upon the Issuer
and all Holders.
Section 11.12 Judgment Currency. The Issuer agrees, to the fullest
------------------
extent that it may effectively do so under applicable law, that (1) if for
the purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in the City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in the
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (2) its obligations under this Indenture to make payments in the Required
Currency (a) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (1)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (b) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (c)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
Section 11.13 Separability Clause. If any provision of this
-------------------
Indenture or of the Securities, or the application of any such provision to
any Person or circumstance, shall be held to be invalid, illegal or
unenforceable, the remainder of this Indenture or of the Securities, or the
application of such provision to Persons or circumstances other than those as
to whom or which it is invalid, illegal or unenforceable, shall not in any
way be affected or impaired thereby.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this
--------------------------
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
Section 12.2 Notice of Redemption; Partial Redemptions. Notice of
------------------------------------------
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of redemption
to the Holders of Unregistered Securities to be redeemed as a whole or in part,
who have filed their names and addresses with the Trustee pursuant to
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Section 313(c)(2) of the Trust Indenture Act of 1939 shall be given by
mailing notice of such redemption, by first class mail, postage prepaid, at
least 30 days and not more than 60 prior to the date fixed for redemption, to
such Holders at such addresses as were so furnished to the Trustee (and, in
the case of any such notice given by the Issuer, the Trustee shall make such
information available to the Issuer for such purpose). Notice of redemption
to all other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, the City of New York and
in an Authorized Newspaper in London (and, if required by Section 3.09, in
an Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor
more than 60 days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives the notice. Failure
to give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such Holder shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender
of such Securities and, in the case of Securities with Coupons attached
thereto, of all Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in
part only the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof
will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own
paying agent, set aside, segregate and hold in trust as provided in Section
3.3) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70 days prior
to the date fixed for redemption an Officer's Certificate stating the
aggregate principal amount of Securities to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officer's Certificate stating that such restriction has been
complied with.
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If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may
be redeemed in part in multiples equal to the minimum authorized denomination
for Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
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 of any series shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
Section 12.3 Payment of Securities Called for Redemption. If
--------------------------------------------
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at
the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Issuer shall
default in the payment of such Securities at the redemption price, together
with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured
Coupons, if any, appertaining thereto shall be void, and, except as provided
in Sections 3.3 and 6.5, such Securities shall cease from and after the date
fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and
surrender of such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing after the
date fixed for redemption, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption;
PROVIDED that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with Coupons
attached thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holders
of such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption such Security may be redeemed after deducting
from the redemption price any amount equal to the face amount of all
such missing Coupons, or the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any paying agent any such missing Coupon in respect of which a
deduction shall have been made from the redemption price, such
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Holder shall be entitled to receive the amount so deducted; PROVIDED,
--------
HOWEVER, that interest represented by Coupons shall be payable as provided
- -------
in Section 2.9 and, unless otherwise specified as contemplated by Section
2.3, only upon presentation and surrender of those Coupons.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
Section 12.4 Exclusion of Certain Securities from Eligibility for
----------------------------------------------------
Selection for Redemption. Securities shall be excluded from eligibility for
- ------------------------
selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
Section 12.5 Mandatory and Optional Sinking Funds. (1) The
-------------------------------------
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by
the terms of the Securities of any series is herein referred to as an
"optional sinking fund payment". The date on which a sinking fund payment is
to be made is herein referred to as the "sinking fund payment date".
(2) In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
(3) On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or
cured) and are continuing and (d) stating whether or not the Issuer
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such
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optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer
to be entitled to credit therefor as aforesaid which have not theretofore
been delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such Officer's Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee the
Issuer shall become unconditionally obligated to make all the cash payments
or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Issuer, on or before any such 60th
day, to deliver such Officer's Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof
and (ii) that the Issuer will make no optional sinking fund payment with
respect to such series as provided in this Section.
(4) If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU)
or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency
or ECU) and if the Issuer shall so request with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at
the sinking fund redemption price together with accrued interest to the date
fixed for redemption. If such amount shall be $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) is available. The Trustee
shall select, in the manner provided in Section 12.2, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested
in writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officer's Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment
date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officer's Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
The Trustee, in the name and at the expense of the Issuer (or the Issuer, if
it shall so request the Trustee in writing) shall cause notice of redemption
of the Securities of such series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section 12.3) for
the redemption of Securities of such series in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or allocated
to the redemption of Securities of such series shall be added to the next
cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which
are not held for the payment or redemption of particular Securities of such
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series shall be applied, together with other moneys, if necessary, sufficient
for the purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
(5) On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
(6) The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such
redemption. 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 the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article V and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section
5.10 or the default cured on or before the sixtieth day preceding the sinking
fund payment date in any year, such moneys shall thereafter be applied on
the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE XIII
SUBORDINATION
Section 13.1 Agreement to Subordinate. The Issuer, for itself, its
-------------------------
successors and assigns, covenants and agrees, and each Holder of a Security or
Coupon, by its acceptance thereof, likewise covenants and agrees, that the
payment of the principal of and interest on, each and all of the Securities
and any Coupons is hereby expressly subordinated, to the extent and in the
manner hereinafter in this Article XIII set forth, in right of payment to the
prior payment in full of all Senior Indebtedness.
Section 13.2 Rights of Senior Indebtedness in the Event of
----------------------------------------------
Insolvency, Etc., of the Issuer.
- --------------------------------
(1) In the event of any insolvency or bankruptcy proceedings, and
any receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to the Issuer or to its creditors, as such, or
to its property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Issuer, whether or not involving
insolvency or bankruptcy, and in the event of any execution sale, then the
holders of Senior Indebtedness shall be entitled to receive payment in full of
principal thereof and interest due thereon (including, without limitation,
except to the extent, if any, prohibited by mandatory provisions of law,
post-petition interest in any such proceedings) in money or money's worth of
all Senior Indebtedness before the Holders are entitled to receive any
payment on account of the principal of or interest on the indebtedness
evidenced by the Securities or of the Coupons, and to
64
<PAGE>
that end the holders of Senior Indebtedness shall be entitled to receive for
application in payment thereof any payment or distribution of any kind or
character, whether in cash or property or securities, which may be payable or
deliverable in connection with any such proceedings or sale in respect of the
principal of or interest on the Securities or Coupons other than securities of
the Issuer as reorganized or readjusted or securities of the Issuer or any
other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinate, at least to the extent provided in this
Article XIII with respect to the Securities or Coupons, to the payment of
all indebtedness of the nature of Senior Indebtedness, provided that the
rights of the holders of the Senior Indebtedness are not altered by such
reorganization or readjustment;
(2) In the event and during the continuation of any default in
payment of any Senior Indebtedness or if any event of default, as therein
defined, shall exist under any Senior Indebtedness or any agreement pursuant
to which any Senior Indebtedness is issued, no payment
of the principle of or interest on the Securities or Coupons shall be made
and the Issuer covenants that it will, upon ascertaining any such default or
event of default, provide written notice to the Trustee of such default or
event of default;
(3) In the event that the Securities of any series are declared
due and payable before their expressed maturity because of the occurrence of
an Event of Default (under circumstances when the provisions of Subsection
(1) of this Section 13.2 shall not be applicable), the holders of all Senior
Indebtedness shall be entitled to receive payment in full in money or money's
worth of such Senior Indebtedness before such Holders are entitled to receive
any payment on account of the principal of or interest on the Securities or
Coupons; and
(4) No holder of Senior Indebtedness shall be prejudiced in his
or her right to enforce subordination of the Securities or Coupons by any act
or failure to act on the part of the Issuer.
Section 13.3 Payment Over of Proceeds Received on Securities. In
------------------------------------------------
the event that, notwithstanding the provisions of Section 13.2, any payment
or distribution of assets of the Issuer of any kind or character, whether in
cash, property or securities (other than securities of the Issuer as
reorganized or readjusted or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in this Article XIII with
respect to the Securities or Coupons, to the payment of all indebtedness of
the nature of Senior Indebtedness, PROVIDED that the rights of the holders of
the Senior Indebtedness are not altered by such reorganization or readjustment)
shall be received by the Holders or by the Trustee for their benefit in
connection with any proceedings or sale referred to in Subsection (1) of
Section 13.2 before all Senior Indebtedness is paid in full in money or money's
worth, such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness held
or represented by each, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full in money or money's worth, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
65
<PAGE>
From and after the payment in full in money or money's worth of all
Senior Indebtedness, the Holders (together with the holders of any other
indebtedness of the Issuer which is subordinate in right of payment to the
payment in full of all Senior Indebtedness, which is not subordinate in right
of payment to the Securities or Coupons and which by its terms grants such
right of subrogation to the holder thereof) shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
assets or securities of the Issuer applicable to the Senior Indebtedness
until the Securities and any Coupons shall be paid in full, and, for the
purposes of such subrogation, no such payments or distributions to the holders
of Senior Indebtedness of assets or securities, which otherwise would have
been payable or distributable to Holders, shall, as between the Issuer, its
creditors other than the holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article XIII
are and are intended solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of the Senior Indebtedness,
on the other hand, and nothing contained in this Article XIII or elsewhere in
this Indenture or in the Securities or Coupons is intended to or shall impair
as between the Issuer, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Issuer, which is
unconditional and absolute, to pay to the Holders the principal of and
interest on the Securities or Coupons as and when the same shall become due
and payable in accordance with their terms, or to affect the relative rights
of the Holders and creditors of the Issuer other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee
or the holder of any Security or Coupon from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture
subject to the rights of the holders of Senior Indebtedness, under Section
13.2, to receive cash, property or securities of the Issuer otherwise payable
or deliverable to the holders of the Securities or Coupons.
Upon any distribution or payment in connection with any proceedings
or sale referred to in Subsection (1) of Section 13.2, the Trustee, subject
as between the Trustee and the Holders to the provisions of Sections 6.1 and
6.2 hereof, shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other Person making any distribution or payment to the
Trustee for the purpose of ascertaining the holders of Senior Indebtedness
entitled to participate in such payment or distribution, the amount of such
Senior Indebtedness or the amount payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XIII. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Section 13.3, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section 13.3, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness, and shall not be liable to any such
holders if it shall in good faith pay over or
66
<PAGE>
distribute to Holders or the Issuer or any other Person moneys or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of
Article XIII of this Indenture or otherwise.
Section 13.4 Payments to Holders. Nothing contained in this
--------------------
Article XIII or elsewhere in this Indenture, or in any of the Securities or
in any Coupon, shall prevent at any time, (1) the Issuer from making payments
at any time of principal of or interest on the Securities or Coupons,
except under the conditions described in Section 13.2 or during the pendency
of any proceedings or sale therein referred to, PROVIDED, HOWEVER, that
payments of principal of or interest on the Securities or Coupons shall only
be made by the Issuer within three business days of the due dates for such
payments or (2) the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of or interest on
the Securities or Coupons, if at the time of such deposit the Trustee did not
have written notice in accordance with Section 13.6 of any event prohibiting
the making of such deposit by the Issuer or if in the event of
redemption, the Trustee did not have such written notice prior to the time
that the notice of redemption pursuant to Section 12.2 was given (which
notice of redemption shall in no event be given more than 60 days prior to
the date fixed for redemption).
Section 13.5 Holders of Securities Authorize Trustee to Effectuate
-----------------------------------------------------
Subordination of Securities. Each Holder by his or her acceptance of a
- ----------------------------
Security or Coupon authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination as provided in this Article XIII and appoints
the Trustee as attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding up, liquidation or reorganization of the
Issuer (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Issuer, the immediate filing of
a claim for the unpaid balance of such Holder's Securities or Coupons in the
form required in said proceedings and cause said claim to be approved.
Section 13.6 Notice to Trustee. Notwithstanding the provisions of
------------------
this Article XIII or any other provisions of this Indenture, the Trustee shall
not be charged with the knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to the Trustee, unless and until
the Trustee shall have received written notice thereof from the Issuer or
from the holder or the representative of any class of Senior Indebtedness;
PROVIDED, HOWEVER, that if at least two Business Days prior to the date upon
which by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of either the cash amount payable
at maturity or interest on any Security or Coupon), the Trustee shall not
have received with respect to such monies the notice provided for in this
Section 13.6, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary, which may be received by it on or
after such two Business Days prior to such date.
Section 13.7 Trustee May Hold Senior Indebtedness. Subject to the
-------------------------------------
provisions of Section 6.13, the Trustee shall be entitled to all the rights
set forth in this Article XIII with respect
67
<PAGE>
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness.
Section 13.8 Applicability of Article XIII to Paying Agents. In
-----------------------------------------------
case at any time any paying agent other than the Trustee shall be appointed
by theIssuer and be then acting hereunder, the term "Trustee" as used in this
Article XIII in such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within its meaning
as fully for all intents and purposes as if such paying agent were named in
this Article XIII in place of the Trustee.
68
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of [ ].
OHIO CASUALTY CORPORATION
By: [ ]
Title: [ ]
Attest:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: [ ]
Title: [ ]
[CORPORATE SEAL]
Attest:
69
<PAGE>
EXHIBIT 12.1
Computation of consolidated ratio of earnings to fixed charges
<PAGE>
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
Earnings to fixed charges =
(Income from continuing operations before income tax + fixed
charges) / fixed charges
Fixed charges represent interest expense on debt, the portion of rents
representative of the interest factor and amortization of debt expense.
(dollar amounts in 000's)
Year Ended December 31,
1998 = ($103,000+3,547+4,022+340) / ($3,547+4,022+340)
= 14.02
1997 = ($173,457+3,147+4,148+412) / ($3,147+4,148+412)
= 23.51
1996 = ($115,038+3,769+4,184+224) / ($3,769+4,184+224)
= 15.07
1995 = ($120,177+4,474+4,032+191) / ($4,474+4,032+191)
= 14.82
1994 = ($109,326+4,102+4,306+606) / ($4,102+4,306+606)
= 13.13
<PAGE>
EXHIBIT 23.1
Consent of PricewaterhouseCoopers LLP
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement (Form No. 333-70761) on Form S-3 of our report dated February 4,
1999 relating to the consolidated financial statements, which appears in the
1998 Annual Report to Shareholders, which is incorporated by reference in
Ohio Casualty Corporation's Annual Report on Form 10-K for the year ended
December 31, 1998. We also consent to the incorporation by reference of our
report dated February 4, 1999 relating to the financial statement schedules,
which appears in such Annual Report on Form 10-K. We also consent to the
references to us under the headings "Experts" in such Registration
Statement.
/s/PRICEWATERHOUSECOOPERS LLP
Cincinnati, Ohio
May 10, 1999
<PAGE>
EXHIBIT 23.3
Consent of Ernst & Young LLP
<PAGE>
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" and to
the incorporation by reference in Pre-Effective Amendment No. 2 to the
Registration Statement (Form S-3 No. 333-70761) and related Prospectus
of Ohio Casualty Corporation for the registration of $300 million of debt
securities of our report dated January 22, 1999, with respect to the special-
purpose financial statements of the Commercial Lines Business of American
Financial Corporation included in Ohio Casualty Corporation's Current Report
(Form 8-K/A) dated March 26, 1999, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Cincinnati, Ohio
May 6, 1999
<PAGE>
EXHIBIT 24.1
Powers of Attorney
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/ Lauren N. Patch
--------------------------------
Lauren N. Patch, President and
Chief Executive Officer, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them,
shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/ Joseph L. Marcum
--------------------------------------
Joseph L. Marcum, Chairman of the Board,
Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/William L. Woodall
-----------------------------------------
William L. Woodall, Vice Chairman
of the Board and Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Barry S. Porter
----------------------------------------
Barry S. Porter, Chief Financial Officer
and Treasurer
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective
amendments) to such Registration Statement; and I do hereby ratify and confirm
all that said attorneys and agents, or their substitute or substitutes, or any
of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Arthur J. Bennert
-------------------------------------
Arthur J. Bennert, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Jack E. Brown
--------------------------------------
Jack E. Brown, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Catherine E. Dolan
---------------------------------------
Catherine E. Dolan, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Wayne R. Embry
---------------------------------------
Wayne R. Embry, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/ Vaden Fitton
--------------------------------------
Vaden Fitton, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Stephen S. Marcum
---------------------------------------
Stephen S. Marcum, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Stanley N. Pontius
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Stanley N. Pontius, Director
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Ohio Casualty Corporation
(the "Company"), does hereby constitute and appoint Lauren N. Patch and Barry
S. Porter, and each of them severally, my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of an indeterminate
number or amount of debt securities of the Company, including specifically, but
without limitation, power and authority to sign for me in my name in such
capacity as a director and/or officer for the Company, such Registration
Statement and any and all amendments (including post-effective amendments) to
such Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 19th day
of January, 1999.
/s/Howard L. Sloneker III
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Howard L. Sloneker III, Director
