<PAGE>
As filed with the Securities and Exchange Commission on May 23, 1994
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ORION CAPITAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-6069054
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Orion Capital Corporation
30 Rockefeller Plaza
New York, New York 10112-0156
(212) 332-8080
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Michael P. Maloney, Esq.
Vice President, General Counsel and Secretary
Orion Capital Corporation
30 Rockefeller Plaza
New York, New York 10112-0156
(212) 332-8080
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
Robert M. Hart, Esq.
Donovan Leisure Newton
& Irvine
30 Rockefeller Plaza
New York, New York 10112-0156
(212) 632-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS
DETERMINED IN LIGHT OF MARKET CONDITIONS AND OTHER FACTORS.
<PAGE>
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, check the
following box. / X /
---
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM AMOUNT
CLASS OF AMOUNT OFFERING AGGREGATE OF
SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER UNIT(1) PRICE (1) FEE
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<S> <C> <C> <C> <C>
Debt Securities(2) \ 100% \ \
Preferred Stock, | | |
$1.00 par | | |
value(2) > $100,000,000(3) -- > $100,000,000(3)(4) > $34,483
Common Stock, | | |
$1.00 par | | |
value(2)(5) | -- | |
Depositary | | |
Shares(6) | -- | |
Warrants(7) / -- / /
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</TABLE>
(1) Estimated for the sole purpose of computing the registration fee.
(2) Also includes such indeterminate amounts of Debt Securities and
Preferred Stock and indeterminate number of shares of Common Stock
as may be issued upon conversion of or exchange for any other Debt
Securities or Preferred Stock that provide for conversion or
exchange into other Securities.
(3) Such amount represents the principal amount of the Debt Securities
issued at their principal amount, the issue price rather than the
principal amount of any Debt Securities issued at an original
issue discount, the liquidation preference of any Preferred Stock,
the amount computed pursuant to Rule 457(c) for any Common Stock,
the issue price of any Warrants and the exercise price of any
Securities issuable upon the exercise of Warrants.
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(4) No separate consideration will be received for the Debt
Securities, Preferred Stock, Common Stock or the Depositary Shares
issuable upon conversion of or in exchange for Debt Securities or
Preferred Stock.
(5) Includes Preferred Share Purchase Rights. Prior to the occurrence
of certain events, the Rights will not be exercisable or evidenced
separately from the Common Stock.
(6) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In
the event the Registrant elects to offer to the public fractional
interests in shares of the Preferred Stock registered hereunder,
Depositary Receipts will be distributed to those persons
purchasing such fractional interests and shares of Preferred Stock
will be issued to the Depositary under the Deposit Agreement. No
separate consideration will be received for the Depositary Shares.
(7) Warrants may be sold separately or with Debt Securities, Preferred
Stock or Common Stock.
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.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS
BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO
THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS
SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN
WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL, PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
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<PAGE>
SUBJECT TO COMPLETION,
DATED MAY 23, 1994
[logo]
$100,000,000
ORION CAPITAL CORPORATION
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK,
DEPOSITARY SHARES AND WARRANTS
Orion Capital Corporation ("Orion") may from time to time offer,
together or separately, its (i) debt securities (the "Debt Securities")
which may be either senior debt securities (the "Senior Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (ii) shares of its preferred stock, $1.00 par value per
share (the "Preferred Stock"), which may be issued in the form of
Depositary Shares (as defined herein) evidenced by Depositary Receipts
(as defined herein), (iii) shares of its common stock, $1.00 par value
per share (the "Common Stock"), and (iv) warrants to purchase
securities of Orion as shall be designated by Orion at the time of the
offering (the "Warrants"), in amounts, at prices and on terms to be
determined at the time of offering. (The Debt Securities, Preferred
Stock, Common Stock and Warrants are collectively called the
"Securities").
The Securities offered pursuant to this Prospectus may be issued
in one or more series or issuances and will be limited to $100,000,000
aggregate public offering price. Certain specific terms of the
particular Securities in respect of which this Prospectus is being
delivered are set forth in the accompanying Prospectus Supplement (the
"Prospectus Supplement"), including, where applicable, (i) in the case
of Debt Securities, the specific title, aggregate principal amount, the
denomination, whether such Debt Securities are secured or unsecured
obligations, maturity, premium, if any, the interest, if any (which may
be fixed, floating or adjustable rate), the time and method of
calculating payment of interest, if any, the place or places where
principal of (and premium, if any) and interest, if any, on such Debt
Securities will be payable, the currency in which principal of (and
premium, if any) and interest, if any, on such Debt Securities will be
payable, any terms of redemption at the option of Orion or the holder,
any sinking fund provisions, terms for any conversion or exchange into
other Securities, the initial public offering price and other special
terms, (ii) in the case of Preferred Stock, the specific title, the
aggregate number of shares offered, any dividend (including the method
of calculating payment of dividends), liquidation, redemption, voting
and other rights, any terms for any conversion or exchange into other
Securities, the initial public offering price and other terms, (iii) in
the case of Warrants, the duration, purchase price, exercise price and
detachability of such Warrants and a description of the securities for
which each Warrant is exercisable, and (iv) in the case of Depositary
Shares, the fractional share of Preferred Stock represented by each
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such Depositary Share. If so specified in the applicable Prospectus
Supplement, Debt Securities of a series may be issued in whole or in
part in the form of one or more temporary or permanent global
securities ("Global Securities").
Orion's Common Stock is listed on the New York Stock Exchange
under the trading symbol "OC." Any Common Stock sold pursuant to a
Prospectus Supplement will be listed on such exchange, subject to
official notice of issuance.
Unless otherwise specified in a Prospectus Supplement, the Senior
Debt Securities, when issued, will be unsecured and will rank equally
with all other unsecured and unsubordinated indebtedness of Orion. The
Subordinated Debt Securities, when issued, will be subordinated in
right of payment to all Senior Debt (as defined herein) of Orion.
The Prospectus Supplement will contain information concerning
certain U.S. federal income tax considerations, if applicable to the
Securities offered.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
The Securities will be sold directly, through agents, underwriters
or dealers as designated from time to time, or through a combination of
such methods. If agents of Orion or any dealers or underwriters are
involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the names of such agents, dealers or
underwriters and any applicable commissions or discounts are set forth
in or may be calculated from the Prospectus Supplement with respect to
such Securities.
The date of this Prospectus is , 1994.
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FOR NORTH CAROLINA INVESTORS: THE COMMISSIONER OF INSURANCE OF
THE STATE OF NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS
OFFERING NOR HAS SUCH COMMISSIONER PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS.
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<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY
ORION OR ANY UNDERWRITERS, AGENTS OR DEALERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY
SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
ORION AND ITS SUBSIDIARIES SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AT ANY TIME SUBSEQUENT TO THE
DATE HEREOF.
AVAILABLE INFORMATION
Orion is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and,
in accordance therewith, files periodic reports and other information
with the Securities and Exchange Commission (the "Commission").
Orion has filed with the Commission a Registration Statement (of
which this Prospectus is a part) under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities offered
hereby. This Prospectus does not contain all of the information set
forth in the Registration Statement. Certain portions of the
Registration Statement have been omitted as permitted by the rules and
regulations of the Commission. Statements made in this Prospectus as
to the contents of any contract, agreement, instrument or other
document are not necessarily complete, and in each instance reference
is made to the copy of such contract, agreement, instrument or document
filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference and the exhibits and
schedules thereto.
The Registration Statement, the exhibits and schedules thereto,
and the reports and other information filed by Orion with the
Commission may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the Commission located at Seven World Trade Center, 13th
floor, New York, New York 10048; and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of all or any part of such
materials also may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Such reports, proxy or information statements,
Registration Statement and exhibits and other information concerning
Orion can also be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
-6-
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission
pursuant to the Exchange Act and are incorporated by reference into
this Prospectus and made a part hereof:
(1) Orion's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, as amended by Amendment No. 1 on Form
10-K/A to include financial information required by Form 11-K
for the year ended December 31, 1993 with respect to Orion's
Employees' Stock Savings and Retirement Plan, as filed with
the Commission on April 28, 1994;
(2) Orion's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1994; and
(3) the description of Orion's Common Stock and its preferred
stock purchase rights associated with the Common Stock
contained in its registration statements filed pursuant to
Section 12 of the Exchange Act and any amendment or report
filed for the purposes of updating those descriptions.
All documents filed by Orion pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Securities shall be
deemed to be incorporated by reference in this Prospectus and made a
part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other document subsequently filed
with the Commission which also is or is deemed to be incorporated by
reference herein or in any Prospectus Supplement modifies or supersedes
such statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
ORION UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED,
UPON WRITTEN OR ORAL REQUEST, A COPY OF THE DOCUMENTS THAT HAVE BEEN
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS (NOT INCLUDING EXHIBITS
TO SUCH DOCUMENTS OTHER THAN EXHIBITS SPECIFICALLY INCORPORATED BY
REFERENCE INTO SUCH DOCUMENTS). REQUESTS FOR SUCH DOCUMENTS SHOULD BE
DIRECTED TO MICHAEL P. MALONEY, SECRETARY, ORION CAPITAL CORPORATION,
30 ROCKEFELLER PLAZA, NEW YORK, NEW YORK 10112, TELEPHONE NUMBER (212)
332-8080.
-7-
<PAGE>
THE COMPANY
Orion Capital Corporation ("Orion") is a property and casualty
insurance holding company incorporated under the laws of the State of
Delaware in 1960. Although Orion's insurance subsidiaries and
affiliates are authorized to underwrite and sell most types of property
and casualty insurance throughout the United States and in Canada,
their businesses are concentrated in niche insurance lines,
particularly specialty workers compensation, architect and engineer
professional liability and specialty automobile insurance. (Orion and
its wholly-owned subsidiaries are referred to collectively as the
"Company" unless the context requires otherwise). The Company markets
workers compensation insurance through the EBI Companies and through
Nations' Care, Inc., which was formed in late 1993 and will primarily
focus on alternative workers compensation services and products. The
Company writes professional liability insurance through the DPIC
Companies, assumed reinsurance through SecurityRe Companies and other
specialty property and casualty insurance principally through the
Connecticut Specialty Insurance Group. The Company also participates
in the nonstandard commercial and personal automobile insurance
business through its slightly less than 50% interest in Guaranty
National Corporation. In December 1993, the Company completed the
purchase of a 20% interest in the outstanding common stock of
Intercargo Corporation ("Intercargo"). Intercargo is an insurance
holding company whose subsidiaries specialize in international trade
and transportation coverages.
During 1992 and the first part of 1993, Orion reconfigured and
simplified its debt and capital structure by issuing $110,000,000
principal amount of 9 1/8% Senior Notes due September 1, 2002 (the
"9 1/8% Senior Notes") and entered into a loan agreement with a group
of banks (the "Loan Agreement") under which it had, as of March 31,
1994, $48,500,000 in loans outstanding and $5,000,000 in available
unused line of credit commitments. These borrowings are unsecured.
Borrowings under the Loan Agreement bear interest at or below prime and
mature on January 31, 1998.
The Company's principal executive offices are located at 30
Rockefeller Plaza, New York, New York 10112-0156, and its telephone
number is (212) 332-8080. The home offices of all the Company's
insurance subsidiaries are located at 9 Farm Springs Drive, Farmington,
Connecticut 06032-2569.
Common Stock and per common share data have been restated to
reflect Orion's 5-for-4 stock splits paid on December 7, 1992 and
November 15, 1993.
A.M. Best Company raised the Company's primary rating in
September, 1993 to an "A (Excellent)" from an "A- (Excellent)." A.M.
Best Company has upgraded the ratings of the Company three times since
mid-1990. In general, A.M. Best Company's ratings are based on an
analysis of the financial condition and operation of an insurance
company as they relate to the industry. These ratings are not
-8-
primarily designed for investors and do not constitute recommendations
to buy, sell or hold any security.
-9-
<PAGE>
USE OF PROCEEDS
Except as otherwise set forth in a Prospectus Supplement, the net
proceeds from the sale of the Securities will be used for general
corporate purposes, including working capital, investment in
subsidiaries, the repayment of existing bank debt, possible future
business acquisitions and/or the repurchase of shares of the Common
Stock. The Company does not have any present plans and is not engaged
in any negotiations for the use of any such proceeds or the issuance of
Common Stock in any future acquisition. Any proposal to use proceeds
from any offering of Securities in connection with an acquisition will
be disclosed in the Prospectus Supplement relating to such offering.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings
to fixed charges and ratio of earnings to combined fixed charges and
preferred stock dividends for the periods indicated:
<TABLE>
<CAPTION>
Three Months
Ended
March 31, Years Ended December 31,
--------------------------------
1994 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings
to Fixed Charges 4.46 4.83 3.34 3.15 2.08 2.44
Ratio of Earnings
to Combined Fixed
Charges and
Preferred Stock
Dividends 4.46 4.72 2.69 2.58 1.82 2.05
</TABLE>
For purposes of computing both the ratio of earnings to fixed
charges and the ratio of earnings to combined fixed charges and
preferred stock dividends, "earnings" represent consolidated earnings
from operations before equity in earnings of affiliates, federal income
taxes, cumulative effect of adoption of new accounting principles and
extraordinary item plus fixed charges and distributed earnings of
affiliates. "Fixed charges" consist of interest and the portion of
rental expense deemed representative of the interest factor. Preferred
stock dividends, which are not deductible for income tax purposes, have
been increased to a taxable equivalent basis. This adjustment has been
calculated by using the effective tax rate for the applicable year.
All shares of Orion preferred stocks were converted into Common Stock
or redeemed in 1992 and 1993; as a result, for the three months ended
March 31, 1994, the ratio of earnings to combined fixed charges and
-10-
preferred stock dividends was the same as the ratio of earnings to
fixed charges.
-11-
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement
may relate. The particular terms of the Debt Securities offered by any
Prospectus Supplement and the extent, if any, to which such general
provisions may not apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt
Securities.
The Senior Debt Securities are to be issued under an Indenture to
be dated as of , 1994 (the "Senior Indenture"), between
------------
Orion and State Street Bank and Trust Company of Connecticut, National
Association ("State Street"), as trustee. The Subordinated Debt
Securities are to be issued under a separate Indenture to be dated as
of , 1994 (the "Subordinated Indenture"), between Orion and
----------
State Street, as trustee. The Senior Indenture and the Subordinated
Indenture are sometimes referred to collectively as the "Indentures."
Copies of the Senior Indenture and the Subordinated Indenture have been
filed as exhibits to the Registration Statement. See "Available
Information." State Street is sometimes hereinafter referred to as
"Trustee." See "Trustee" below. The following summaries of certain
provisions of the Senior Debt Securities, the Subordinated Debt
Securities and the Indentures do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all
the provisions of the Indentures applicable to a particular series of
Debt Securities, including the definitions therein of certain terms.
Wherever particular Sections, Articles or defined terms of the
Indentures are referred to, it is intended that such Sections, Articles
or defined terms shall be incorporated herein by reference. Article
and Section references used herein are references to the applicable
Indenture. Capitalized terms not otherwise defined herein shall have
the meaning given in the Indentures.
There is no requirement that future issues of debt securities of
Orion be issued pursuant to the Registration Statement of which this
Prospectus is a part or under either of the Indentures, and the Company
is free to employ other indentures or documentation containing
provisions different from those included in the Indentures or
applicable to one or more issues of the Debt Securities in connection
with future issues of such other debt securities.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and each Indenture provides
that Debt Securities may be issued thereunder from time to time in one
or more series. The Debt Securities are payable in currency of the
United States of America. Unless otherwise specified in the Prospectus
Supplement, the Senior Debt Securities when issued will be unsecured
and unsubordinated obligations of Orion and will rank equally and
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ratably with all other unsecured and unsubordinated indebtedness of
Orion. The Subordinated Debt Securities when issued will be
subordinated in right of payment to the prior payment in full of all
Senior Debt (as defined below) of Orion, as described under
"Subordination of Subordinated Debt Securities" and in the Prospectus
Supplement applicable to an offering of Subordinated Debt Securities.
The Debt Securities will be payable in the currency of the United
States.
Reference is made to the Prospectus Supplement relating to the
particular Debt Securities offered thereby (the "Offered Debt
Securities") which shall set forth whether the Offered Debt Securities
shall be Senior Debt Securities or Subordinated Debt Securities, and
shall further set forth the following terms of the Offered Debt
Securities: (1) the title of the Offered Debt Securities; (2) any
limit on the aggregate principal amount of the Offered Debt Securities;
(3) the Person to whom any interest on the Offered Debt Securities will
be payable, if other than the Person in whose name such Offered Debt
Securities are registered on any Regular Record Date; (4) the date or
dates on which the principal of the Offered Debt Securities will be
payable; (5) the rate or rates per annum (which may be fixed, floating
or adjustable) at which the Offered Debt Securities will bear interest,
if any, or the formula pursuant to which such rate or rates shall be
determined, the date or dates from which such interest will accrue and
the dates on which such interest, if any, will be payable and the
Regular Record Dates for such interest payment dates; (6) whether the
Offered Debt Securities will be secured; (7) the place or places where
principal of (and premium, if any) and interest, if any, on Offered
Debt Securities will be payable; (8) if applicable, the price at which,
the periods within which and the terms and conditions upon which the
Offered Debt Securities may be redeemed in whole or in part at the
option of Orion pursuant to a sinking fund or otherwise; (9) if
applicable, any obligation of Orion to redeem or purchase Offered Debt
Securities pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof, and the period or periods within which,
the price or prices at which and the terms and conditions upon which
the Offered Debt Securities will be redeemed or purchased, in whole or
in part; (10) if applicable, the terms of any right to convert or
exchange the Offered Debt Securities into other securities or property
of Orion; (11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Offered Debt
Securities will be issuable; (12) if the amount of payments of
principal of (or premium, if any) or interest, if any, on the Offered
Debt Securities may be determined with reference to one or more
indices, the manner in which such amounts will be determined; (13) the
portion of the principal amount of the Offered Debt Securities, if
other than the principal amount thereof, payable upon acceleration of
maturity thereof; (14) whether all or any part of the Offered Debt
Securities will be issued in the form of a Global Security or
Securities and, if so, the depositary for, and other terms relating to,
such Global Security or Securities; (15) any event or events of default
applicable with respect to the Offered Debt Securities in addition to
those provided in the Indentures; (16) any other covenant or warranty
included for the benefit of the Offered Debt Securities in addition to
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(and not inconsistent with) those included in the Indentures for the
benefit of Debt Securities of all series, or any other covenant or
warranty included for the benefit of the Offered Debt Securities in
lieu of any covenant or warranty included in the Indentures for the
benefit of Debt Securities of all series, or any provision that any
covenant or warranty included in the Indentures for the benefit of Debt
Securities of all series shall not be for the benefit of the Offered
Debt Securities, or any combination of such covenants, warranties or
provisions; (17) any restriction or condition on the transferability of
the Offered Debt Securities; (18) any authenticating or paying agents,
registrars, conversion agents or any other agents with respect to the
Offered Debt Securities; and (19) any other terms of the Offered Debt
Securities. (Indentures, Section 301) Debt Securities may also be
issued under the Indentures upon the exercise of Warrants. See
"Description of Warrants."
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Offered Debt Securities are to be issued as registered
securities without coupons in denominations of $1,000 or any integral
multiple of $1,000. (Indentures, Section 302) No service charge will
be made for any transfer or exchange of such Offered Debt Securities,
but Orion or the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith. (Indentures, Section 305)
Debt Securities may be issued under the Indentures as Original
Issue Discount Securities to be sold at a substantial discount below
their stated principal amount. Federal income tax consequences and
other considerations applicable thereto will be described in the
Prospectus Supplement relating thereto.
Since Orion is a holding company, the rights of Orion, and hence
the rights of creditors of Orion (including the Holders of the Debt
Securities), to participate in any distribution of the assets of any
subsidiary upon its liquidation or reorganization or otherwise is
necessarily subject to the prior claims of creditors of such
subsidiary, except to the extent that claims of Orion itself as a
creditor of such subsidiary may be recognized. Generally, the Debt
Securities will be effectively subordinated to all existing and future
indebtedness of Orion's operating subsidiaries. Holders of the Debt
Securities should also be aware of the restrictions under state
insurance regulations on dividends and distributions by its insurance
subsidiaries to Orion. See "Limitations on Payments from Insurance
Subsidiaries" below.
The Indentures do not contain any provisions that limit the
ability of Orion or any subsidiary to incur indebtedness or that afford
Holders of the Debt Securities protection in the event of a highly
leveraged or similar transaction involving Orion or any subsidiary.
The terms of Orion's presently outstanding Loan Agreement limit
the amount and type of additional borrowings, prepayments of existing
indebtedness, liens and guarantees by the Company and require the
Company to meet minimum net worth and certain other financial tests.
-14-
The Indenture for the 9 1/8% Senior Notes does not contain financial
covenants requiring the Company to maintain a certain financial
condition or limitations on the amount of additional debt that Orion or
its subsidiaries may incur, but does limit the aggregate amount of
secured indebtedness that the Company may incur without equally and
ratably securing the holders of the 9 1/8% Senior Notes.
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise specified in the Prospectus Supplement, the
following events are defined in the Indentures as "Events of Default"
with respect to Debt Securities of any series: (a) failure to pay
principal (including any sinking fund payment) of, or premium (if any)
on, any Debt Security of that series when due (in the case of the
Subordinated Indenture, whether or not payment is prohibited by the
subordination provisions); (b) failure to pay interest, if any, on any
Debt Security of that series when due and such failure continues for a
period of 30 days; (c) failure by Orion to perform in any material
respect any other covenant in the Indentures (other than a covenant
included in the Indentures solely for the benefit of a series of Debt
Securities other than that series) which continues for a period of 90
days after written notice to Orion; (d) due acceleration (which
acceleration shall not have been rescinded within 30 days after written
notice to Orion) of any indebtedness for borrowed money in a principal
amount in excess of $40,000,000 for which Orion or any Principal
Subsidiary (as defined) is liable, including Debt Securities of another
series, or a default by Orion or any Principal Subsidiary in the
payment at final maturity of outstanding indebtedness for borrowed
money in a principal amount in excess of $40,000,000 unless such
acceleration or default at maturity shall be remedied or cured by Orion
or such Principal Subsidiary or rescinded, annulled or waived by the
holders of such indebtedness, in which case such acceleration or
default at maturity shall not constitute an Event of Default under this
provision and any acceleration relating thereto shall be rescinded; and
(e) certain events of insolvency, reorganization, receivership or
liquidation of Orion. (Indentures, Section 501)
No Event of Default with respect to Debt Securities of a
particular series shall necessarily constitute an Event of Default with
respect to Debt Securities of any other series. If an Event of Default
with respect to Debt Securities of any series at the time Outstanding
shall occur and be continuing, either the Trustee or the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of
that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Debt Securities, such
portion of the principal amount as may be specified in the terms of
that series) of all Debt Securities of that series to be due and
payable immediately; provided, however, that under certain
circumstances the Holders of a majority in aggregate principal amount
of Outstanding Debt Securities of that series may rescind or annul such
declaration and its consequences. (Indentures, Section 502)
Reference is made to the Prospectus Supplement relating to any
series of Offered Debt Securities which are Original Issue Discount
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Securities for the particular provisions relating to the principal
amount of such Original Issue Discount Securities due on acceleration
upon the occurrence of an Event of Default and the continuation thereof.
Each Indenture provides that the Trustee may withhold notice to
the Holders of the Debt Securities of any default (except in payment of
principal (or premium, if any) or interest, if any) if it considers it
in the interest of the Holders of the Debt Securities to do so.
(Indentures, Section 602)
Orion will be required to furnish to the applicable Trustee
annually a statement by certain officers of Orion as to the compliance
with all conditions and covenants of the Indentures. (Indentures,
Section 1004)
The Holders of a majority in principal amount of the Outstanding
Debt Securities of any series affected will have the right, subject to
certain limitations, to direct the time, method and place of conducting
any proceeding for any remedy available to the applicable Trustee or
exercising any trust or power conferred on such applicable Trustee with
respect to the Debt Securities of such series, and to waive certain
defaults. (Indentures, Sections 512 and 513)
The Indentures provide that, in case an Event of Default shall
occur and be continuing, the applicable Trustee shall exercise such of
its rights and powers under the Indentures, and use the same degree of
care and skill in its exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(Indentures, Section 601). Subject to such provisions, the applicable
Trustee will be under no obligation to exercise any of its rights or
powers under the Indentures at the request of any of the Holders of
Debt Securities unless they shall have offered to such Trustee security
or indemnity in form and substance reasonably satisfactory to such
Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request. (Indentures, Section
603)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indentures or for any
remedy thereunder, unless such Holder shall have previously given to
the applicable Trustee written notice of a continuing event of Default
and unless also the Holders of at least 25% in aggregate principal
amount of the Outstanding Debt Securities of the same series shall have
made written request, and offered security or indemnity to such Trustee
in form and substance reasonably satisfactory to such Trustee, to
institute such proceeding as trustee, and such Trustee shall not have
received from the Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of the same series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days. (Indentures, Section 507). However, such
limitations do not apply to a suit instituted by a Holder of a Debt
Security for enforcement of payment of the principal of (or premium, if
any) or interest, if any, on such Debt Security on or after the
respective due dates expressed in such Debt Security, or of the right
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to convert such Debt Security in accordance with the Indentures (if
applicable). (Indentures, Section 308)
MODIFICATION AND WAIVER
Each Indenture provides that from time to time, Orion and the
Trustee, without the consent of the Holders of any series of Debt
Securities, may amend the Indenture or such series of Debt Securities
for certain specified purposes, including curing ambiguities, defects,
or inconsistencies and making any such change that does not adversely
affect the rights of any Holder of such series of Debt Securities.
Modifications and amendments of the Indentures may also be made by
Orion and the applicable Trustee, with the consent of the Holders of
not less than a majority of aggregate principal amount of each series
of the Outstanding Debt Securities issued under the Indentures which is
affected by the modification or amendment; provided, however, that no
such modification or amendment may, without the consent of each Holder
of such Debt Security affected thereby: (1) change the Stated Maturity
of the principal of (or premium, if any) or any installment of
principal or interest, if any, on any such Debt Security; (2) reduce
the principal amount of (or premium, if any) or the interest rate, if
any, on any such Debt Security or the principal amount due upon
acceleration of any Original Issue Discount Security; (3) change the
place or currency of payment of principal of (or premium, if any) or
the interest, if any, on any such Debt Security; (4) impair the right
to institute suit for the enforcement of any such payment on or with
respect to any such Debt Security; (5) adversely change the right to
convert or exchange, including decreasing the conversion rate or
increasing the conversion price of, such Debt Security (if applicable);
(6) reduce the percentage of Holders of Debt Securities necessary to
modify or amend the Indentures; (7) in the case of the Subordinated
Indenture, modify the subordination provisions in a manner adverse to
the holders of the Subordinated Debt Securities; or (8) modify the
foregoing requirements or reduce the percentage of outstanding Debt
Securities necessary to waive compliance with certain provisions of the
Indentures or for waiver of certain defaults. (Indentures, Section
902)
The holders of at least a majority of the aggregate principal
amount of the Outstanding Debt Securities of any series may, on behalf
of all Holders of that series, waive compliance by Orion with certain
restrictive provisions of the Indentures and waive any past default
under the Indentures, except a default in the payment of principal (or
premium, if any), or interest (if any) or in the performance of certain
covenants. (Indentures, Sections 907 and 513)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that Orion may elect either (A) to defease
and be discharged from any and all obligations with respect to any
series of such Debt Securities (including, in the case of Subordinated
Debt Securities, the provisions described under "Subordinated Debt
Securities" herein and except for the obligations to exchange or
register the transfer of such Debt Securities to replace temporary or
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mutilated, destroyed, lost or stolen Debt Securities, to maintain an
office or agency in respect of the Debt Securities, and to hold monies
for payments in trust) ("defeasance"), or (B) to be released from its
obligations with respect to such Debt Securities concerning the
restrictions described under "Limitations on Liens on Common Stock of
Principal Subsidiaries" and "Consolidation, Merger and Sale of Assets"
and any other covenants applicable to such Debt Securities (including,
in the case of Subordinated Debt Securities, the provisions described
under "Subordination of Subordinated Debt Securities" herein), which
are subject to covenant defeasance ("covenant defeasance"), and the
occurrence of an event described and notice thereof in clauses (c) and
(d) under "Events of Default and Notice Thereof" (with respect to
covenants subject to covenant defeasance) shall no longer be an Event
of Default, in each case, upon the irrevocable deposit with the
applicable Trustee (or other qualifying trustee), in trust for such
purpose, of money and U.S. Government Obligations (as defined) which
through the payment of principal and interest in accordance with their
terms will provide money in an amount sufficient to pay the principal
of (and premium, if any) and interest, if any, on such Debt Securities,
and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor. Such a trust may only be established if,
among other things, (i) Orion has delivered to the applicable Trustee
(A) in the case of defeasance, an Opinion of Counsel (as defined)
stating that (1) Orion has received from, or there has been published
by, the Internal Revenue Service a ruling, or (2) since the date of the
Indenture, there has been a change in the applicable Federal income tax
law, in case of either (1) or (2) to the effect that the Holders of
such Securities will not recognize a gain or loss for Federal income
tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not
to occur or (B) in the case of covenant defeasance, an Opinion of
Counsel to the effect that the Holders of such Debt Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and 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 deposit and covenant
defeasance had not occurred, (ii) no Event of Default or event which
with the giving of notice or lapse of time, or both, would become an
Event of Default under the Indenture shall have occurred and be
continuing on the date of such deposit and (iii) in the case of
Subordinated Debt Securities, (x) no default in the payment of
principal of (or premium, if any) or interest, if any, on any Senior
Debt beyond any applicable grace period shall have occurred and be
continuing, or (y) no other default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted in the
acceleration of such Senior Debt. (Indentures, Article Thirteen)
Orion may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant
defeasance option. If Orion exercises its defeasance option, payment
of such Debt Securities may not be accelerated because of an Event of
Default. If Orion exercises its covenant defeasance option, payment of
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such Debt Securities may not be accelerated by reference to the
covenants noted under Clause (B) above. In the event Orion omits to
comply with its remaining obligations with respect to such Debt
Securities under the Indentures after exercising its covenant
defeasance option and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default, the amount of money
and U.S. Government Obligations on deposit with the Trustee may, in
certain circumstances, be insufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting
from such Event of Default; however, Orion will remain liable in
respect of such payments. (Indentures, Article Thirteen)
LIMITATION ON LIENS ON COMMON STOCK OF PRINCIPAL SUBSIDIARIES
Except as set forth below, so long as any of the Senior Securities
or the Subordinated Debt Securities (as the case may be) remains
outstanding, Orion will not, and will not permit any Principal
Subsidiary to, issue, assume, incur or guarantee any indebtedness for
borrowed money secured by a mortgage, pledge, lien or other encumbrance
in the nature of a lien ("Lien") on any shares of the Common Stock of a
Principal Subsidiary, which Common Stock is owned by Orion or by a
Principal Subsidiary, without effectively providing that such Debt
Securities (and the 9 1/8% Senior Notes if and to the extent then
required to be secured by the terms of the 9 1/8% Senior Notes
Indenture), and, if Orion so elects, any other indebtedness for
borrowed money of Orion ranking senior to or on a parity with such Debt
Securities, shall be secured equally and ratably with, or prior to,
such indebtedness so long as such indebtedness shall be so secured
unless after giving effect thereto, the aggregate amount of all such
secured indebtedness of Orion and its Subsidiaries would not exceed 15%
of the Consolidated Tangible Net Worth of Orion and its Subsidiaries as
reflected on Orion's most recently prepared quarterly balance sheet;
provided, however, that this covenant shall not apply to, and there
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shall be excluded from secured indebtedness in any computation under
this covenant, indebtedness for borrowed money secured by: (i) Liens
existing on the date of the Indenture; (ii) Liens on any shares of
common stock of any corporation existing at the time such corporation
becomes a Principal Subsidiary or merges into or consolidates with
Orion or any Principal Subsidiary; (iii) Liens on shares of common
stock of any Person existing at the time of acquisition thereof by
Orion or any Principal Subsidiary; (iv) Liens to secure the financing
of the acquisition, construction or improvement of property, or the
acquisition of shares of stock, by Orion or any Principal Subsidiary if
such Liens are created not later than one year after such acquisition,
or in the case of property, completion of construction or commencement
of commercial operation, whichever is later, (v) Liens in favor of
Orion or any Subsidiary; (vi) Liens required by or in favor of
governments or agencies thereof including those to secure progress,
advance or other payments pursuant to any contract or provision of any
statute; (vii) Liens in the nature of rights of set-off or bankers'
liens pursuant to any contract or statute; and (viii) any extension,
renewal or replacement (or successive extensions, renewals or
replacements) as a whole or in part of any Lien referred to in the
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foregoing clauses (i) to (vii) inclusive; provided, further that
-------- -------
(a) such extension, renewal or replacement Lien shall be limited to all
or a part of the same shares of stock that secured the Lien extended,
renewed or replaced and (b) the indebtedness secured by such Lien at
such time is not increased. (Indentures, Section 1005) See "General"
above.
"Principal Subsidiary" means any Subsidiary of the Company which
at the time of determination has, (A) assets which, as of the date of
the Company's most recently prepared quarterly consolidated balance
sheet, constituted at least 15% of the Company's total assets on a
consolidated basis as of such date, or (B) revenues for the 12-month
period ending on the date of the Company's most recently prepared
quarterly consolidated statement of income which constituted at least
15% of the Company's total revenues on a consolidated basis for such
period or (C) net earnings for the 12-month period ending on the date
of the Company's most recently prepared quarterly consolidated
statement of income which constituted at least 15% of the Company's
total net earnings on a consolidated basis for such period.
(Indentures, Section 101) As of the date of this Prospectus, the
Principal Subsidiaries are Security Insurance Company of Hartford and
Employee Benefits Insurance Company.
"Consolidated Tangible Net Worth" means, at any date, the total
assets appearing on the most recently prepared consolidated balance
sheet of Orion and its Subsidiaries as of the end of a fiscal quarter
of the Company, prepared in accordance with generally accepted
accounting principles consistently applied (subject to normal year-end
adjustments and except to the extent an inconsistency results from
compliance with new financial accounting standards with which the
Company's independent public accountants concur), less (a) the total
liabilities appearing on such balance sheet and (b) intangible assets.
For this purpose, "intangible assets" means the value (net of any
applicable reserves), as shown on or reflected in such balance sheet,
of (i) all trade names, trademarks, licenses, patents, copyrights and
goodwill; (ii) organizational and development costs; and (iii)
unamortized debt discount and expense, less unamortized premium; but
(iv) excludes deferred policy acquisition costs and deferred income tax
assets.
For purposes of the Indentures, "Common Stock" means, with respect
to Orion, its common stock, par value $1.00 per share, and with respect
to any Principal Subsidiary, stock of any class, however designated,
except stock which is non-participating beyond fixed dividend and
liquidation preferences and the holders of which have either no voting
rights or limited voting rights entitling them, only in the case of
certain contingencies, to elect less than a majority of the directors
(or persons performing similar functions) of such Principal Subsidiary,
and shall include securities of any class, however designated, which
are convertible into such Common Stock. (Indentures, Section 101)
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CONSOLIDATION, MERGER AND SALE OF ASSETS
Orion may not consolidate with or merge into any other Person or
sell its property and assets as, or substantially as, an entirety to
any Person and may not permit any Person to merge into or consolidate
with Orion unless (i) either Orion will be the resulting or surviving
entity or any successor or purchaser is a corporation, partnership or
trust organized under the law of the United States of America, any
State or the District of Columbia, and any such successor or purchaser
expressly assumes Orion's obligations on the Debt Securities under a
supplemental Indenture, (ii) immediately after giving effect to the
transaction no Event of Default shall have occurred and be continuing,
and (iii) certain other conditions are met. (Indentures, Section 801)
CONVERSION RIGHTS
The terms on which Debt Securities of any series may be
convertible or exchangeable into Common Stock or other securities of
Orion or exchangeable into securities of another corporation will be
set forth in the Prospectus Supplement relating thereto. Such terms
shall include provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at the option of Orion, and
may include provisions pursuant to which the number of shares of Common
Stock or other securities of Orion or the securities of another
corporation as the case may be, to be received by the holders of Debt
Securities would be calculated according to the market price of Common
Stock or other securities of Orion as of a time stated in the
Prospectus Supplement. (Indentures, Article Twelve)
SUBORDINATION OF DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the
following provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in
the Subordinated Indenture, be subordinate in right of payment to the
prior payment in full of all Senior Debt, including the Senior Debt
Securities. Upon any payment or distribution of assets to creditors
upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of Orion, the
holders of Senior Debt will first be entitled to receive payment in
full of principal of (and premium, if any) and interest, if any, on
such Senior Debt before the holders of the Subordinated Debt Securities
will be entitled to receive or retain any payment in respect of the
principal of (and premium, if any) or interest, if any, on the
Subordinated Debt Securities. (Subordinated Indenture, Section 1502)
By reason of such subordination, in the event of liquidation or
insolvency, creditors of Orion who are not Holders of Senior Debt may
recover less, ratably, than Holders of Senior Debt and may recover
more, ratably, than the Holders of the Subordinated Debt Securities.
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In the event of the acceleration of the maturity of any
Subordinated Debt Securities, the holders of all Senior Debt
outstanding at the time of such acceleration will first be entitled to
receive payment in full of all amounts due thereon (including any
amounts due upon acceleration) before the Holders of the Subordinated
Debt Securities will be entitled to receive any payment upon the
principal of (or premium, if any) or interest, if any, on the
Subordinated Debt Securities. (Subordinated Indenture, Section 1503)
No payments on account of principal (or premium, if any) or
interest, if any, in respect of the Subordinated Debt Securities may be
made if there shall have occurred and be continuing a default in any
payment with respect to Senior Debt, or an event of default with
respect to any Senior Debt resulting in the acceleration of the
maturity thereof, or if any judicial proceeding shall be pending with
respect to any such default. (Subordinated Indenture, Section 1504)
For purposes of the subordination provisions, the payment, issuance and
delivery of cash, property or securities (other than stock and certain
subordinated securities of Orion) upon conversion of a Subordinated
Debt Security will be deemed to constitute payment on account of the
principal of such Subordinated Debt Security.
"Debt" means (without duplication and without regard to any
portion of principal amount that has not accrued and to any interest
component thereof (whether accrued or imputed) that is not due and
payable) with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the
account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of
such Person; (vi) the maximum fixed redemption or repurchase price of
redeemable stock of such Person at the time of determination; and (vii)
every obligation of the type referred to in clauses (i) through (vi) of
another Person and all dividends of another Person the payment of
which, in either case, such Person has guaranteed or is responsible or
liable, directly or indirectly, as obligor or otherwise.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to Orion to
the extent that such claim for post-petition interest is allowed in
such proceeding), on Debt, whether incurred on or prior to the date of
the Subordinated Indenture or thereafter incurred, unless, in the
instrument creating or evidencing the same or pursuant to which the
same is outstanding, it is provided that such obligations are not
superior in right of payment to the Subordinated Debt Securities or to
other Debt which is pari passu with, or subordinated to, the
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Subordinated Debt Securities; provided, however, that Senior Debt shall
not be deemed to include (i) the Subordinated Debt Securities or
(ii) the Debt referred to in clause (vi) of the definition of Debt.
The Subordinated Indenture does not limit or prohibit the
incurrence of additional Senior Debt, which may include indebtedness
that is senior to the Subordinated Debt Securities, but subordinate to
other obligations of Orion. The Senior Debt Securities, when issued,
will constitute Senior Debt. The indebtedness under Orion's presently
outstanding Loan Agreement and its 9 1/8% Senior Notes also constitute
Senior Debt. At March 31, 1994, Senior Indebtedness outstanding
aggregated approximately $158 million, and as of the date of this
Prospectus aggregated approximately $ million. See "Description of
---
Debt Securities -- General" and "The Company."
The Prospectus Supplement may further describe the provisions, if
any, applicable to the subordination of the Subordinated Debt
Securities of a particular series.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one
or more Global Securities that will be deposited with a Depositary or
its nominee. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal amount of Outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for
Debt Securities in definitive registered form, a Global Security may
not be registered for transfer or exchange except as a whole by the
Depositary for such Global Security to a nominee for such Depositary
and except in the circumstances described in the applicable Prospectus
Supplement. (Indentures, Sections 204 and 305)
The specific terms of the depositary arrangement with respect to
any portion of a series of Debt Securities to be represented by a
Global Security and a description of the Depositary will be contained
in the applicable Prospectus Supplement.
THE TRUSTEE
Each Indenture contains limitations on the right of the Trustee,
as a creditor of Orion, to obtain payment of claims in certain cases,
or to realize on certain property received in respect of any such claim
as security or otherwise. In addition, the Trustee may be deemed to
have a conflicting interest and may be required to resign as Trustee if
at the time of a default under the applicable Indenture it is a
creditor of Orion. State Street Bank and Trust Company, an affiliate
of the Trustee, is a lender under the Loan Agreement. See "The
Company." At March 31, 1994, its portion of the outstanding
indebtedness thereunder was approximately $4,850,000.
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The applicable Trustee or its affiliates may act as depositary for
funds of, make loans to and perform other services for, or may be a
customer of, the Company in the ordinary course of business.
GOVERNING LAW
The Indentures are governed by and shall be construed in
accordance with the laws of the State of New York, but without regard
to principles of conflicts of laws.
LIMITATIONS ON PAYMENTS FROM INSURANCE SUBSIDIARIES
As a holding company, Orion is dependent primarily upon dividends,
payments in lieu of taxes and management service fees from its
operating subsidiaries to pay its expenses, including debt service
requirements and dividends to its stockholders. The payment of
dividends and other distributions to Orion by its insurance
subsidiaries is subject to state regulation. No state restricts
dividend payments by Orion to its stockholders.
The ability of the Company's insurance subsidiaries to declare
dividends is governed primarily by the insurance laws of each
subsidiary's state of incorporation. Generally, such laws currently
provide that, unless prior approval is obtained, dividends of a
property and casualty insurance company in any consecutive 12-month
period shall not exceed the greater of its net income for the preceding
calendar year or 10% of its policyholders' surplus as of the preceding
December 31, determined on a statutory accounting basis. Dividends and
distributions by the Company's insurance subsidiaries are also subject
to a requirement that statutory policyholders' surplus be reasonable in
relation to outstanding liabilities and adequate to meet the companies'
financial needs following the declaration of any dividends or
distributions. State insurance regulators have, however, broad
discretionary authority with respect to approving the payment of
dividends by insurance companies. As part of the process of
accreditation by the National Association of Insurance Commissioners,
state insurance regulators have been recommending the adoption of new
state statutory standards for the payment of dividends by insurance
companies without prior approval. Some states have implemented more
restrictive dividend standards. Under current regulations applicable
to the Company, the maximum dividends permitted at December 31, 1993
for the ensuing twelve months, without prior approval, aggregated
$37,373,000. Since it is difficult to predict future levels of
statutory policyholders' surplus or earnings, the amount of dividends
that could be paid in the future without prior approval cannot be
determined at this time.
Reference is made to the full text of the applicable statutes for
their respective terms, and this partial summary is not intended to be
complete.
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DESCRIPTION OF CAPITAL STOCK
The following descriptions and the descriptions contained in
"Description of Preferred Stock" and "Description of Common Stock" are
summaries, and reference is herein made to the detailed provisions of
the following documents, instruments and agreements copies of which are
filed as exhibits to the Registration Statement: (i) Orion's Restated
Certificate of Incorporation, as amended (the "Certificate of
Incorporation"); (ii) Orion's By-Laws, as amended (the "By-Laws"); and
(iii) the Rights Agreement dated March 15, 1989 between Orion and
Chemical Bank (successor by merger to Manufacturers Hanover Trust
Company), as Rights Agent (the "Rights Agreement"), pursuant to which
shares of Series A Junior Participating Preferred Stock ("Junior
Participating Preferred Stock") are issuable in certain circumstances.
See "Description of Common Stock -- Stockholder Preferred Stock
Purchase Rights; Antitakeover Considerations."
Pursuant to the Certificate of Incorporation, the authorized
capital stock of Orion consists of 30,000,000 shares of Common Stock,
par value $1.00 per share, and 5,000,000 shares of Preferred Stock, par
value $1.00 per share.
As of March 31, 1994, there were outstanding: (a) 14,346,251
shares of Common Stock (with the associated rights to purchase shares
of Junior Participating Preferred Stock in certain circumstances
pursuant to the Rights Agreement) and (b) employee stock options to
purchase an aggregate of 287,087 shares of Common Stock (of which
options to purchase an aggregate of 191,446 shares of Common Stock were
exercisable as of such date). As of March 31, 1994, an aggregate of
636,070 shares of Common Stock were reserved for issuance pursuant to
Orion's 1979 Stock Option Plan and its 1982 Long-Term Performance
Incentive Plan.
DESCRIPTION OF PREFERRED STOCK
The following description sets forth certain general terms and
provisions of the Preferred Stock to which any Prospectus Supplement
may relate. Certain other terms and the particular terms of a specific
series of Preferred Stock will be described in the Prospectus
Supplement relating to that series. If so indicated in the Prospectus
Supplement, the terms of any such series may differ from the terms set
forth below. The summary description of certain provisions of the
Preferred Stock set forth below and in any Prospectus Supplement does
not purport to be complete and is subject to and qualified in its
entirety by reference to Orion's Certificate of Incorporation (as it
may be amended from time to time) and the certificate of designation
relating to each such series of Preferred Stock (the "Certificate of
Designation"), which will be filed as an exhibit to or incorporated by
reference in the Registration Statement of which this Prospectus forms
a part at or prior to the time of issuance of such series of the
Preferred Stock.
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GENERAL
Under Orion's Certificate of Incorporation, the Board of Directors
is authorized without further stockholder action to issue from time to
time up to 5,000,000 shares of Preferred Stock and to fix and determine
the terms, limitations and relative rights and preferences of any class
of such preferred stock, including, without limitation, any voting
rights thereof, to divide and issue any of the classes of preferred
stock in series, and to fix and determine the variations among series
to the extent permitted by law. Thus, the Board of Directors, without
stockholder approval, could authorize the issuance of preferred stock
with voting, conversion and other rights that could adversely affect
the voting power (if any) and other rights of other series of the
Preferred Stock. As of the date of this Prospectus, Orion has no
preferred stock outstanding. Orion has authorized 100,000 shares of
the Junior Participating Preferred Stock for issuance upon exercise of
certain preferred share purchase rights associated with each share of
outstanding Common Stock as provided in the Rights Agreement. For
additional information about the Rights Agreement and certain other
considerations, see "Description of Common Stock -- Stockholder
Preferred Stock Purchase Rights; Antitakeover Considerations."
The Preferred Stock shall have the dividend, liquidation,
redemption and voting rights set forth below unless otherwise provided
in the Prospectus Supplement relating to a particular series of
Preferred Stock offered thereby for specific terms, including: (1) the
designation and the number of shares offered; (2) the amount of
liquidation preference per share; (3) the price at which such Preferred
Stock will be issued; (4) the dividend rate (or method of calculation),
the dates on which dividends will be payable, whether such dividends
will be cumulative or noncumulative and, if cumulative, the dates from
which dividends will commence to cumulate; (5) any redemption or
sinking fund provisions; (6) the terms of any rights to convert or
exchange the Preferred Stock into other securities or property of
Orion; (7) whether Orion has elected to offer Depositary Shares (as
defined below); and (8) any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
As indicated elsewhere herein, because Orion is a holding company,
its rights and the rights of holders of its securities, including the
holders of Preferred Stock, to participate in the distribution of
assets of any subsidiary of Orion upon the latter's liquidation or
recapitalization will be subject to the prior claims of such
subsidiary's creditors and preferred stockholders, except to the extent
Orion may itself be a creditor with recognized claims against such
subsidiary or a holder of preferred stock of such subsidiary. See also
"Description of Debt Securities -- Limitations on Payments by Insurance
Subsidiaries." The Preferred Stock shall with respect to dividend
rights and rights upon winding up and dissolution of Orion rank prior
to the Common Stock.
The Preferred Stock offered hereby will be issued in one or more
series. The holders of Preferred Stock will have no preemptive rights.
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Preferred Stock will be fully paid and nonassessable upon issuance
against full payment of the purchase price therefor. Unless otherwise
specified in the Prospectus Supplement relating to a particular series
of Preferred Stock, each series of Preferred Stock offered hereby will
rank on a parity as to dividends and liquidation rights in all respects
with each other series of Preferred Stock (other than the Junior
Participating Preferred Stock). The Prospectus Supplement will
contain, if applicable, a description of certain United States Federal
income tax consequences relating to the purchase and ownership of the
series of Preferred Stock offered by such Prospectus.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to
receive when, as and if declared by the Board of Directors of Orion,
out of funds legally available therefor, cash dividends at such rates
and on such dates as are set forth in the Prospectus Supplement
relating to such series of Preferred Stock. Different series of the
Preferred Stock may be entitled to dividends at different rates or
based upon different methods of determination. Such rate may be fixed
or variable or both. Each such dividend will be payable to the holders
of record as they appear on the stock books of Orion on such record
dates as will be fixed by the Board of Directors of Orion or a duly
authorized committee thereof. Dividends on any series of the Preferred
Stock may be cumulative or noncumulative, as provided in the Prospectus
Supplement relating thereto.
For information about funds available for payment of dividends by
Orion, see "Description of Debt Securities - Limitations on Payments
from Insurance Subsidiaries."
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of Orion, the holders of each series of
Preferred Stock will be entitled to receive out of assets of Orion
available for distribution to stockholders, before any distribution of
assets is made to holders of Common Stock or any other class of stock
ranking junior to such series of the Preferred Stock upon liquidation,
liquidating distributions in the amount set forth in the Prospectus
Supplement relating to such series of Preferred Stock plus an amount
equal to accrued and unpaid dividends for the then current dividend
period and, if such series of the Preferred Stock is cumulative, for
all dividend periods prior thereto, all as set forth in the Prospectus
Supplement with respect to such shares.
REDEMPTION
One or more series of the Preferred Stock may be redeemable, in
whole or in part, at the option of Orion, and may be subject to
mandatory redemption pursuant to a sinking fund, in each case, upon
terms, at the times and at the redemption prices set forth in the
Prospectus Supplement relating to each such series.
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CONVERSION
The terms, if any, on which shares of any series of Preferred
Stock are convertible into Common Stock will be set forth in the
Prospectus Supplement relating thereto. Such terms may include
provisions for conversion, either mandatory, at the option of the
holder, or at the option of Orion, in which case the number of shares
of Common Stock to be received by the holders of Preferred Stock would
be calculated as of a time and in the manner stated in the Prospectus
Supplement.
TRANSFER AGENT AND REGISTRAR
The transfer agent, registrar and dividend disbursement agent for
the Preferred Stock will be designated in the applicable Prospectus
Supplement. The registrar for shares of Preferred Stock will send
notices to stockholders of any meetings at which holders of the
Preferred Stock have the right to elect directors of the Company or to
vote on any other matter.
VOTING RIGHTS
The holders of Preferred Stock of a series offered hereby will not
have any voting rights except as indicated in the Prospectus Supplement
relating to such series of Preferred Stock or as required by applicable
law.
DEPOSITARY SHARES
GENERAL. Orion may, at its option, elect to offer receipts for
fractional interests ("Depositary Shares") in Preferred Stock, rather
than full shares of Preferred Stock. In such event, receipts
("Depositary Receipts") for Depositary Shares, each of which will
represent a fraction (to be set forth in the Prospectus Supplement
relating to a particular series of Preferred Stock) of a share of a
particular series of Preferred Stock, will be issued as described
below.
The shares of any series of Preferred Stock represented by
Depositary Shares will be deposited under a Deposit Agreement (the
"Deposit Agreement") between Orion and a depositary to be named by
Orion in a Prospectus Supplement (the "Depositary"). Subject to the
terms of the Deposit Agreement, each owner of a Depositary Share will
be entitled, in proportion to the applicable fraction of a share of
Preferred Stock represented by such Depositary Share, to all the rights
and preferences of the Preferred Stock represented thereby (including
dividend, voting, redemption, subscription and liquidation rights).
The following summary of certain provisions of the Deposit Agreement
does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Deposit
Agreement, including the definitions therein of certain terms.
Whenever particular sections of the Deposit Agreement are referred to,
it is intended that such sections shall be incorporated herein by
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reference. Copies of the forms of Deposit Agreement and Depositary
Receipt are filed as exhibits to the Registration Statement of which
this Prospectus is a part, and the following summary is qualified in
its entirety by reference to such exhibits.
DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute
all cash dividends or other cash distributions received in respect of
the Preferred Stock to the record holders of Depositary Shares relating
to such Preferred Stock in proportion to the numbers of such Depositary
Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary
will distribute property received by it to the record holders of
Depositary Shares in an equitable manner, unless the Depositary
determines that it is not feasible to make such distribution, in which
case the Depositary may sell such property and distribute the net
proceeds from such sale to such holders.
REDEMPTION OF DEPOSITARY SHARES. If a series of Preferred Stock
represented by Depositary Shares is subject to redemption, the
Depositary Shares will be redeemed from the proceeds received by the
Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The redemption price
per Depositary Share will be equal to the applicable fraction of the
redemption price per share payable with respect to such series of the
Preferred Stock. Whenever Orion redeems shares of Preferred Stock held
by the Depositary, the Depositary will redeem as of the same redemption
date the number of Depositary Shares representing shares of Preferred
Stock so redeemed. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot,
pro rata or by any other equitable method as may be determined by the
Depositary.
VOTING THE PREFERRED STOCK. Upon receipt of notice of any meeting
at which the holders of the Preferred Stock are entitled to vote, the
Depositary will mail the information contained in such notice of
meeting to the record holders of the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Shares on the
record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of the Preferred
Stock represented by such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the amount of the
Preferred Stock represented by such Depositary Shares in accordance
with such instructions, and Orion will agree to take all reasonable
action which may be deemed necessary by the Depositary in order to
enable the Depositary to do so. The Depositary will abstain from
voting shares of the Preferred Stock to the extent it does not receive
specific instructions from the holder of Depositary Shares representing
such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT. The form of
Depositary Receipt evidencing the Depositary Shares and any provision
of the Deposit Agreement may at any time be amended by agreement
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between Orion and the Depositary. However, any amendment which
materially and adversely alters the rights of the holders of Depositary
Shares will not be effective unless such amendment has been approved by
the holders of at least a majority of the Depositary Shares then
outstanding. The Deposit Agreement will only terminate if (i) all
outstanding Depositary Shares have been redeemed or (ii) there has been
a final distribution in respect of the Preferred Stock, including in
connection with any liquidation, dissolution or winding up of Orion and
such distribution has been distributed to the holders of Depositary
Receipts.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign
at any time by delivering to Orion notice of its election to do so, and
Orion may at any time remove the Depositary, any such resignation or
removal to take effect upon the appointment of a successor Depositary
and its acceptance of such appointment. Such successor Depositary must
be appointed within 60 days after delivery of the notice of resignation
or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus
of at least $50,000,000.
CHARGES OF DEPOSITARY. Orion will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. Orion will pay charges of the Depositary in
connection with the initial deposit of the Preferred Stock and issuance
of Depositary Receipts, all withdrawals of shares of Preferred Stock by
owners of Depositary Shares and any redemption of the Preferred Stock.
Holders of Depositary Receipts will pay other transfer and other taxes
and governmental charges and such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
MISCELLANEOUS. The Depositary will forward all reports and
communications from Orion which are delivered to the Depositary and
which Orion is required or otherwise determines to furnish to the
holders of the Preferred Stock.
Neither the Depositary nor Orion will be liable under the Deposit
Agreement to holders of Depositary Receipts other than for its gross
negligence, willful misconduct or bad faith. Neither Orion nor the
Depositary will be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock
unless satisfactory indemnity is furnished. Orion and the Depositary
may rely upon written advice of counsel or accountants, or upon
information provided by persons presenting Preferred Stock for deposit,
holders of Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine.
DESCRIPTION OF COMMON STOCK
GENERAL
Subject to the rights of the holders of any shares of Orion's
Preferred Stock which may at the time be outstanding, holders of Common
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Stock are entitled to such dividends as the Board of Directors may
declare out of funds legally available therefor. The holders of Common
Stock will possess exclusive voting rights in the Company, except to
the extent the Board of Directors specifies voting power with respect
to any Preferred Stock which may be issued, and except as may be
required pursuant to the Delaware General Corporation Law. Holders of
Common Stock are entitled to one vote for each share of Common Stock on
all matters on which stockholders are entitled to vote, including the
election of directors, except as otherwise provided by law. There is
no classification of the Board of Directors, and stockholders are not
entitled to cumulate votes in the election of directors. In the event
of liquidation, dissolution or winding up of Orion, the holders of
Common Stock are entitled to receive, after payment of all of Orion's
debts and liabilities and of all sums to which holders of any Preferred
Stock may be entitled, the distribution of any remaining assets of
Orion. Holders of the Common Stock will not be entitled to preemptive
rights with respect to any shares which may be issued. All issued and
outstanding shares of Common Stock are validly issued, fully paid and
non-assessable. Any shares of Common Stock sold hereunder will be
fully paid and nonassessable. The Common Stock is listed on the New
York Stock Exchange under the symbol "OC." See also "Description of
Debt Securities -- Limitations on Payments by Insurance Subsidiaries."
CERTAIN RESTRICTIONS
Orion is subject to state laws regulating insurance holding
companies. Most states have enacted legislation or adopted
administrative regulations affecting insurance holding companies and
the acquisition of control of insurance companies. Most states require
administrative approval of the acquisition of 10% or more of the
outstanding voting securities of an insurance company incorporated in
the state or the acquisition of 10% or more of the voting securities of
an insurance holding company whose insurance subsidiary is incorporated
in the state. The acquisition of 10% of such shares (which would
include securities convertible into voting securities) is deemed to be
the acquisition of "control" for the purpose of most holding company
statutes and requires not only the filing of detailed information
concerning the acquiring parties and the plan of acquisition but also
administrative approval prior to the acquisition. See also
"Description of Debt Securities -- Limitations on Payments from
Insurance Subsidiaries." Reference is made to the full text of the
applicable statutes for their respective terms, and this partial
summary is not intended to be complete.
STOCKHOLDER PREFERRED STOCK PURCHASE RIGHTS; ANTITAKEOVER
CONSIDERATIONS
In March 1989, the Board of Directors of Orion declared a dividend
distribution of one preferred stock purchase right (the "Rights") on
each outstanding share of Common Stock and entered into the Rights
Agreement with respect to the Rights. The Rights attach to each share
of Common Stock subsequently issued, prior to the time the rights
become exercisable, expire or are redeemed. The Rights have been
adjusted as a result of the two 5-for-4 stock splits to 64% of a Right
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on a share of Common Stock. See "The Company." The Rights are
designed to assure stockholders that they will receive equitable
treatment in the event of a proposed takeover.
Under the Rights Agreement, each holder of a Right is entitled to
buy one hundredth of a share of Junior Participating Preferred Stock.
The Rights will be exercisable if an acquiror gains a 20% or greater
beneficial ownership interest in Common Stock by either a purchase, a
tender offer or an exchange offer. If an acquiror gains such 20% or
greater beneficial ownership other than on fair and favorable terms to
all stockholders, each Right not owned by such acquiror will enable the
holder to purchase, at an initial exercise price of $80, Common Stock
(or other consideration in some circumstances) having a value of twice
the Right's exercise price. In addition, if, following the acquisition
of 20% or more of its Common Stock, Orion is involved in a merger or
other business combination transaction in which common shares are
changed or converted, or Orion sells 50% or more of its assets, each
Right that has not previously been exercised will entitle its holder to
purchase, at the Right's then current exercise price, common shares of
such other company having a value of twice the Rights exercise price.
Orion will generally be entitled to redeem the Rights at $.01 per Right
at any time until, unless otherwise extended, the 10th day following
public announcement that 20% or more of its outstanding Common Stock is
to be acquired by any person.
The Common Stock offered hereby will be entitled to the benefit of
the Rights and the certificates representing such shares of Common
Stock will contain a notation incorporating the Rights Agreement by
reference. The Rights trade with and are evidenced by the Common Stock
until they become exercisable.
Orion's By-Laws include a provision requiring written notice with
respect to the nomination of a person for election as a director (other
than a person nominated at the direction of the Board), as well as the
submission of a proposal (other than a proposal submitted at the
direction of the Board), at a meeting of stockholders containing
certain information and compliance with certain procedural steps.
Pursuant to the Certificate of Incorporation, the Board of
Directors, without stockholder approval, could authorize the issuance
of preferred stock with voting, conversion and other rights that could
adversely affect the voting power and other rights of holders of Common
Stock or other series of preferred stock or that could have the effect
of delaying, deferring or preventing a change in control of Orion.
Orion could issue a class or classes of preferred stock the provisions
of which would not protect the holders thereof with respect to
redemption premiums in the event of certain mergers or other changes of
control or not provide the holders thereof an opportunity to vote as a
class with respect to certain changes of control.
Orion is a Delaware corporation and is subject to the provisions
of Section 203 ("Business Combinations with Interested Stockholders")
of the Delaware General Corporation Law, which prohibits, subject to
various conditions, certain business combination transactions (defined
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broadly to include mergers, consolidations, sales or other dispositions
of assets having an aggregate value in excess of 10% of the
consolidated assets of the corporation and certain other transactions)
between a Delaware corporation subject to Section 203 and an
"interested stockholder" (as defined below) for a period of three years
following the date the interested stockholder acquired its stock,
unless (i) the business combination is approved by the corporation's
board of directors prior to the date the interested stockholder
acquired shares; (ii) the interested stockholder acquired at least 85%
of the voting stock of the corporation in the transaction in which it
became an interested stockholder; or (iii) the business combination is
approved by a majority of the board of directors and by the affirmative
vote of two-thirds of the votes entitled to be cast by disinterested
stockholders at an annual or special meeting. An "interested
stockholder" is defined as a person who, together with any affiliates
and/or associates of such person, beneficially owns, directly or
indirectly, 15% or more of the outstanding voting shares of such a
Delaware corporation. Reference is made to the full text of the
statute for its entire terms and the partial summary contained in this
Prospectus is not intended to be complete.
Certain of the provisions described above may have antitakeover
effects and tend to support incumbent management or have the effect of
discouraging transactions involving actual or potential change in
control of Orion. Management is not aware of any attempt to acquire
the Company.
TRANSFER AGENT
The Transfer Agent and Registrar for the Common Stock is Chemical
Bank, New York, New York.
DESCRIPTION OF WARRANTS
Orion may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), Preferred Stock, Common Stock or other of
its securities. Warrants may be issued independently or together with
any such securities of Orion and may be attached to or separate from
such securities of Orion. The Warrants are to be issued under warrant
agreements (each a "Warrant Agreement") to be entered into between
Orion and a bank or trust company, as warrant agent (the "Warrant
Agent"), all as shall be set forth in the Prospectus Supplement
relating to Warrants being offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of
Debt Warrants offered thereby, the Warrant Agreement relating to such
Debt Warrants and the warrant certificates representing such Debt
Warrants, including the following: (1) the title of such Debt
Warrants; (2) the Debt Securities of Orion for which such Debt Warrants
are exercisable; (3) the aggregate number of such Debt Warrants;
(4) the principal amount of Debt Securities purchasable upon exercise
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of each Debt Warrant, and the price or prices at which such Debt
Warrants will be issued; (5) the procedures and conditions relating to
the exercise of such Debt Warrants; (6) the designation and terms of
any related Debt Securities of Orion with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each such Debt
Security; (7) the date, if any, on and after which such Debt Warrants
and the related securities of Orion will be separately transferable;
(8) the date on which the right to exercise such Debt Warrants shall
commence, and the date on which such right shall expire; (9) the
maximum or minimum number of such Debt Warrants which may be exercised
at any time; (10) a discussion of material United States Federal income
tax considerations, if any; (11) any other terms of such Debt Warrants
and terms, procedures and limitations relating to the exercise of such
Debt Warrants; and (12) the terms of the securities of Orion
purchasable upon exercise of such Debt Warrants.
Debt Warrant certificates will be exchanged for new Debt Warrant
certificates of different denominations and Debt Warrants may be
exercised at the corporate trust office of the Warrant Agent or any
other office indicated in the Prospectus Supplement. Prior to the
exercise of their Debt Warrants, holders of Debt Warrants exercisable
for Debt Securities will not have any of the rights of holders of the
Debt Securities purchasable upon such exercise and will not be entitled
to payments of principal (or premium, if any) or interest, if any, on
the Debt Securities purchasable upon such exercise.
OTHER WARRANTS
Orion may issue other Warrants. The applicable Prospectus
Supplement will describe the following terms of any such other Warrants
in respect of which this Prospectus is being delivered: (1) the title
of such Warrants; (2) the Securities (which may include Preferred Stock
or Common Stock) for which such Warrants are exercisable; (3) the price
or prices at which such Warrants will be issued; (4) if applicable, the
designation and terms of the Preferred Stock or Common Stock with which
such Warrants are issued, and the number of such Warrants issued with
each such share of Preferred Stock or Common Stock; (5) if applicable,
the date on and after which such Warrants and the related Preferred
Stock or Common Stock will be separately transferable; (6) if
applicable, a discussion of material federal income tax considerations;
and (7) any other terms of such Warrants, including terms, procedures
and limitations relating to the exchange and exercise of such Warrants.
Prior to the exercise of their Warrants for shares of Preferred Stock
or Common Stock, holders of such Warrants will not have any rights of
holders of the Preferred Stock or Common Stock purchasable upon such
exercise and will not be entitled to dividend payments, if any, or
voting rights of the Preferred Stock or Common Stock purchasable upon
such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase for
cash such principal amount or such number of securities of Orion at
such exercise price as shall in each case be set forth in, or be
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determinable as set forth in, the Prospectus Supplement relating to the
Warrants offered thereby. Warrants may be exercised as set forth in
the Prospectus Supplement relating to the Warrants offered thereby at
any time up to the close of business on the expiration date set forth
in such Prospectus Supplement. After the close of business on the
expiration date, unexercised Warrants will become void.
Upon receipt of payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the
Warrant Agent or any other office indicated in the Prospectus
Supplement, Orion will, as soon as practicable, forward the securities
purchasable upon such exercise. If less than all of the Warrants
represented by such warrant certificate are exercised, a new warrant
certificate will be issued for the remaining Warrants.
PLAN OF DISTRIBUTION
Orion may sell Securities to one or more underwriters for public
offering and sale by them, and also may sell Securities directly to
investors or to other purchasers or through agents. Any such
underwriter or agent involved in the offer and sale of the Securities
will be named in an applicable Prospectus Supplement.
The distribution of the Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated
prices.
Sales of Common Stock offered hereby may be effected from time to
time in one or more transactions on the New York Stock Exchange or in
negotiated transactions or a combination of such methods of sale, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at other negotiated prices. In connection
with distributions of Common Stock or otherwise, Orion may enter into
hedging transactions with broker-dealers in connection with which such
broker-dealers may sell Common Stock registered hereunder in the course
of hedging through short sales the positions they assume with Orion.
In connection with the sale of Securities, underwriters or agents
may receive compensation from Orion or from purchasers of Securities
for whom they may act as agents in the form of discounts, concessions
or commissions. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents.
Underwriters, dealers and agents that participate in the distribution
of Securities may be deemed to be underwriters, and any discounts or
commissions received by them from Orion and any profit on the resale of
Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent
will be identified, and any such compensation received from Orion will
be described, in the Prospectus Supplement.
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Under agreements which may be entered into by Orion, underwriters
and agents who participate in the distribution of Securities may be
entitled to indemnification by Orion against any contribution toward
certain civil liabilities, including liabilities under the Securities
Act, and to reimbursement by Orion for certain expenses.
If so indicated in the Prospectus Supplement, Orion will authorize
underwriters or other persons acting as the Company's agents to solicit
offers by certain institutions to purchase Securities from Orion
pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and
others, but in all cases such institutions must be approved by Orion.
The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Securities shall not
at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and
such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for
Orion in the ordinary course of business.
The Securities may or may not be listed on a national securities
exchange or a foreign securities exchange (other than the Common Stock,
which is listed on the New York Stock Exchange). Any Common Stock sold
pursuant to a Prospectus Supplement will be listed on the New York
Stock Exchange, subject to official notice of issuance. No assurances
can be given that there will be an active trading market for the
Securities.
VALIDITY OF SECURITIES
The legal validity of the Securities offered hereby will be passed
upon for the Company by Donovan Leisure Newton & Irvine, New York, New
York, and for any underwriters or agents by counsel to be named in the
appropriate Prospectus Supplement.
EXPERTS
The consolidated financial statements and the related financial
statement schedules incorporated in this Prospectus by reference from
Orion's Annual Reports on Form 10-K have been audited by Deloitte &
Touche, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in
reliance upon the reports of such firm given upon their authority as
experts in accounting and auditing. The report of Deloitte & Touche on
the December 31, 1993 consolidated financial statements and schedules
refers to a change in 1993 in the Company's accounting for
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postretirement benefits, accounting for income taxes, accounting for
reinsurance and accounting for investments to conform to four new
accounting standards required under generally accepted accounting
principles.
With respect to the unaudited interim information which is
incorporated herein by reference, Deloitte & Touche have applied
limited procedures in accordance with professional standards for a
review of such information. However, as stated in their reports
included in Orion's Quarterly Reports on Form 10-Q and incorporated by
reference herein, they did not audit and they do not express an opinion
on such interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. Deloitte
& Touche are not subject to the liability provisions of Section 11 of
the Securities Act for their reports on the unaudited interim financial
information because those reports are not "reports" or a "part" of the
registration statement prepared or certified by an accountant within
the meaning of Sections 7 and 11 of the Securities Act.
-37-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the registrant's expenses with the
issuance and distribution of the securities being registered. Except
for the SEC Registration Fee, all amounts shown are estimates:
Securities and Exchange Commission filing fee $34,483
Printing and engraving fees and expenses *
Accounting fees and expenses *
Legal fees and expenses *
Blue sky fees and expenses *
Trustee's, Depositary's and Warrant
Agent's Fees and Expenses *
Rating Agency fees *
Miscellaneous -------
TOTAL $ *
-------
--------------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant is a Delaware corporation. Reference is made to
Section 145 of the Delaware General Corporation Law as to indemnifica-
tion by the Registrant of its officers and directors. The general
effect of such law is to empower a corporation to indemnify any of its
officers and directors against certain expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person to be indemnified in connection with
certain actions, suits or proceedings (threatened, pending or
completed) if the person to be indemnified 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, had no reasonable cause to believe his conduct was
unlawful.
Article VII of the Registrant's Restated Certificate of
Incorporation, as amended (which Restated Certificate of Incorporation
is incorporated by reference as Exhibit 4.1 to this Registration
Statement) and Article IX of the Registrant's By-Laws, as amended
(which By-Laws are incorporated by reference to Exhibit 4.2 to this
Registration Statement), provide for the indemnification of the
Registrant's officers and directors in accordance with the Delaware
General Corporation Law, and include, as permitted by the Delaware
General Corporation Law, certain limitations on the potential personal
liability of members of the Registrant's Board of Directors for
-38-
monetary damages as a result of actions taken in their capacity as
Board members. The Registrant has entered into indemnification
agreements (approved by its stockholders) with each of its directors
and senior officers which, among other things, contractually confirm
the indemnity provided under the Registrant's Restated Certificate of
Incorporation, its By-Laws and the Delaware General Corporation Law.
The directors and officers of the Registrant are covered by
insurance policies indemnifying them against certain liabilities
arising under the Securities Act, which might be incurred by them in
such capacities.
The form(s) of proposed Underwriting Agreement(s) filed as Exhibit
1 hereto may include provisions relating to indemnification and
contribution for the benefit of the Underwriters for any offering made
hereby and may also contain provisions relating to the indemnification
of directors and officers of the Registrant against certain
liabilities, including liabilities under the Securities Act.
-39-
<PAGE>
ITEM 16. EXHIBITS
(a)
1 Proposed form(s) of Underwriting Agreement(s).*
4.1 Restated Certificate of Incorporation of the Registrant, as
amended on June 3, 1993 (incorporated by reference to Exhibit
3(i) to the Registrant's Annual Report on Form 10-K for 1993).
4.2 By-Laws, as amended on May 7, 1993 (incorporated by reference to
the Registrant's Annual Report on Form 10-K for 1993).
4.3 Certificate of Designation, Preferences and Rights of Series A
Junior Participation Preferred Stock of the Registrant, dated
March 23, 1989 (incorporated by reference to Exhibit 4(xi) to
the Registrant's Annual Report on Form 10-K for 1988).
4.4 Specimen certificate representing shares of the Registrant's
Common Stock (proof of March 27, 1989) (incorporated by
reference to Exhibit 4(xii) to the Registrant's Annual Report on
Form 10-K for 1988).
4.5 Rights Agreement dated as of March 15, 1989 between Orion
Capital Corporation and Chemical Bank (formerly Manufacturers
Hanover Trust Company), Rights Agent (incorporated by reference
to Registrant's Form 8-A filed on March 28, 1989).
4.6 Indenture, dated as of September 8, 1992, between Orion Capital
Corporation and Shawmut Bank Connecticut, National Association
(formerly The Connecticut National Bank), as Trustee of the
9 1/8% Senior Notes due September 1, 2002 (incorporated by
reference to Exhibit 4(v) to Registrant's Annual Report on Form
10-K for 1992).
4.7 Specimen certificate representing Orion Capital Corporation's
9 1/8% Senior Notes (incorporated by reference to Exhibit 4(vi)
to Registrant's Annual Report on Form 10-K for 1992).
4.8 Form of Indenture for Senior Debt Securities between the
Registrant and State Street Bank and Trust Company of
Connecticut, National Association, as Trustee.
4.9 Form of Indenture for Subordinated Debt Securities between the
Registrant and State Street Bank and Trust Company of
Connecticut, National Association, as Trustee.
[FN]
--------------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Item 601 of Regulation S-K.
4.10 Form of Stock Warrant Agreement.*
-40-
4.11 Form of Debt Warrant Agreement, together with form of Warrant.*
4.12 Form of Deposit Agreement, together with form of Depositary
Receipt.*
5 Opinion and Consent of Donovan Leisure Newton & Irvine.*
12 Statement of Computation of Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
15 Letter in Lieu of Consent of Deloitte & Touche re Unaudited
Interim Financial Information.
23.1 Consent of Donovan Leisure Newton & Irvine (See Exhibit 5).
23.2 Consents of Deloitte & Touche.
24 Powers of Attorney, together with Resolutions of the Board of
Directors of the Registrant certified by the Secretary.
25.1 Form T-1: Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of State Street Bank and Trust
Company of Connecticut, National Association, as Trustee under
the Indenture for Subordinated Debt Securities.
25.2 Form T-1: Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of State Street Bank and Trust
Company of Connecticut, National Association, as Trustee for
Senior Debt Securities.
28 Information from reports furnished to state insurance regulatory
authorities (incorporated by reference to Exhibit 28 to
Registrant's Annual Report on Form 10-K for 1993).
[FN]
--------------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Item 601 of Regulation S-K.
-41-
<PAGE>
ITEM 17. UNDERTAKINGS
(a) Rule 415 offering.
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, unless the information required
to be included in such post-effective amendment is contained in
periodic reports filed 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;
(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, unless the information required to
be included in such post-effective amendment is contained in periodic
reports filed 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;
(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;
(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; and
(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) Incorporation of Subsequent Exchange Act Documents.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended,
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 this 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.
-42-
(c) Indemnification.
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 foregoing
provisions, 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 the registrant of expenses
incurred or paid by a director, officer or controlling person of the
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.
(d) Rule 430A.
(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.
-43-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 New York, State
of New York, on the 23rd day of May, 1994.
ORION CAPITAL CORPORATION
By /s/ ALAN R. GRUBER
---------------------------
Alan R. Gruber
Chairman of the Board
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/ ALAN R. GRUBER Chairman of the Board May 23, 1994
-----------------------
Alan R. Gruber (Principal Executive
and Financial Officer)
/s/ DANIEL L. BARRY Vice President and May 23, 1994
-----------------------
Daniel L. Barry Controller (Principal
Accounting Officer)
/s/ BERTRAM J. COHN Director May 23, 1994
-----------------------
Bertram J. Cohn
/s/ JOHN C. COLMAN Director May 23, 1994
-----------------------
John C. Colman
/s/ LARRY D. HOLLEN Director May 23, 1994
-----------------------
Larry D. Hollen
-44-
/s/ ROBERT H. JEFFREY Director May 23, 1994
-----------------------
Robert H. Jeffrey
/s/ WARREN R. LYONS Director May 23, 1994
-----------------------
Warren R. Lyons
/s/ JAMES K. MCWILLIAMS Director May 23, 1994
-----------------------
James K. McWilliams
/s/ Director May , 1994
----------------------- --
Ronald W. Moore
/s/ DONALD REICH Director May 23, 1994
-----------------------
Donald Reich
/s/ ROBERT B. SANBORN Director May 23, 1994
-----------------------
Robert B. Sanborn
Director May , 1994
----------------------- --
William J. Shepherd
/s/ JOHN R. THORNE Director May 23, 1994
-----------------------
John R. Thorne
/s/ ROGER B. WARE Director May 23, 1994
-----------------------
Roger B. Ware
-45-
* Pursuant to Power of
Attorney:
By:
-----------------------
Name:
Title:
Attorney-in-Fact
May , 1994
--
-46-
<PAGE>
Exhibit Index
Exhibits Page
(a)
1 Proposed form(s) of Underwriting Agreement(s).*
4.1 Restated Certificate of Incorporation of
the Registrant, as amended on June 3, 1993
(incorporated by reference to Exhibit 3(i)
to the Registrant's Annual Report on
Form 10-K for 1993).
4.2 By-Laws, as amended on May 7, 1993
(incorporated by reference to the
Registrant's Annual Report on Form 10-K
for 1993).
4.3 Certificate of Designation, Preferences
and Rights of Series A Junior Participation
Preferred Stock of the Registrant, dated
March 23, 1989 (incorporated by reference
to Exhibit 4(xi) to the Registrant's Annual
Report on Form 10-K for 1988).
4.4 Specimen certificate representing shares
of the Registrant's Common Stock (proof of
March 27, 1989) (incorporated by reference
to Exhibit 4(xii) to the Registrant's Annual
Report on Form 10-K for 1988).
4.5 Rights Agreement dated as of March 15,
1989 between Orion Capital Corporation and
Chemical Bank (formerly Manufacturers Hanover
Trust Company), Rights Agent (incorporated
by reference to Registrant's Form 8-A filed
on March 28, 1989).
4.6 Indenture, dated as of September 8, 1992,
between Orion Capital Corporation and
Shawmut Bank Connecticut, National Association
(formerly The Connecticut National Bank),
as Trustee of the 9 1/8% Senior Notes due
September 1, 2002 (incorporated by reference
to Exhibit 4(v) to Registrant's Annual Report
on Form 10-K for 1992).
[FN]
--------------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Item 601 of Regulation S-K.
-47-
<PAGE>
Exhibit Index
Exhibits Page
4.7 Specimen certificate representing Orion
Capital Corporation's 9 1/8% Senior Notes
(incorporated by reference to Exhibit 4(vi)
to Registrant's Annual Report on Form 10-K
for 1992).
4.8 Form of Indenture for Senior Debt Securities
between the Registrant and State Street Bank
and Trust Company of Connecticut, National
Association, as Trustee.
4.9 Form of Indenture for Subordinated Debt
Securities between the Registrant and State
Street Bank and Trust Company of Connecticut,
National Association, as Trustee.
4.10 Form of Stock Warrant Agreement.*
4.11 Form of Debt Warrant Agreement, together with
form of Warrant.*
4.12 Form of Deposit Agreement, together with form
of Depositary Receipt.*
5 Opinion and Consent of Donovan Leisure Newton
& Irvine.*
12 Statement of Computation of Ratios of Earnings
to Fixed Charges and Earnings to Combined
Fixed Charges and Preferred Stock Dividends.
15 Letter in Lieu of Consent of Deloitte & Touche
re Unaudited Interim Financial Information.
23.1 Consent of Donovan Leisure Newton & Irvine
(See Exhibit 5).
23.2 Consents of Deloitte & Touche.
24 Powers of Attorney, together with Resolutions
of the Board of Directors of Registrant
certified by the Secretary.
[FN]
--------------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Item 601 of Regulation S-K.
-48-
<PAGE>
Exhibit Index
Page
25.1 Form T-1: Statement of Eligibility and
Qualification under the Trust Indenture Act
of 1939 of State Street Bank and Trust
Company of Connecticut, National Association,
as Trustee under the Indenture for Subordinated
Debt Securities.
25.2 Form T-1: Statement of Eligibility and
Qualification under the Trust Indenture Act
of 1939 of State Street Bank and Trust Company
of Connecticut, National Association, as
Trustee for Senior Debt Securities.
28 Information from reports furnished to state
insurance regulatory authorities (incorporated
by reference to Exhibit 28 to Registrant's
Annual Report on Form 10-K for 1993).
-49-
<PAGE>
EXHIBIT 4.8
<PAGE>
ORION CAPITAL CORPORATION
TO
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
TRUSTEE
--------------------
INDENTURE
Dated as of , 1994
-----
--------------------
Senior Debt Securities
<PAGE>
ORION CAPITAL CORPORATION
Reconciliation and tie between certain Sections of
this Indenture, dated as of , 1994,and
-----
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1) ....................................... 609
(a)(2) ....................................... 609
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(b) ....................................... 608
610
311(a) ....................................... 613
(b) ....................................... 613
312(a) ....................................... 701
702(a)
(b) ....................................... 702(b)
(c) ....................................... 702(c)
313(a) ....................................... 703(a)
(b) ....................................... 703(a)
(c) ....................................... 703(a)
(d) ....................................... 703(b)
314(a) ....................................... 704
(a)(4) ....................................... 101
1004
(b) ....................................... Not Applicable
(c)(1) ....................................... 102
(c)(2) ....................................... 102
(c)(3) ....................................... Not Applicable
(d) ....................................... Not Applicable
(e) ....................................... 102
315(a) ....................................... 601
(b) ....................................... 602
(c) ....................................... 601
(d) ....................................... 601
(e) ....................................... 514
316(a) ....................................... 101
(a)(1)(A) ....................................... 502
512
(a)(1)(B) ....................................... 513
(a)(2) ....................................... Not Applicable
(b) ....................................... 508
(c) ....................................... 104(c)
317(a)(1) ....................................... 503
<PAGE>
(a)(2) ....................................... 504
(b) ....................................... 1003
318(a) ....................................... 107
------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
PARTIES......................................................... 1
RECITALS OF THE COMPANY......................................... 1
ARTICLE ONE
-----------
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions....................................... 1
Act............................................... 2
Authenticating Agent.............................. 2
Board of Directors................................ 2
Board Resolution.................................. 2
Business Day...................................... 2
Commission........................................ 2
Common Stock...................................... 2
Company........................................... 3
Company Request; Company Order.................... 3
Consolidated Tangible Net Worth................... 3
Corporate Trust Office............................ 3
corporation....................................... 3
Covenant Defeasance............................... 3
Defaulted Interest................................ 3
Defeasance........................................ 3
Depositary........................................ 3
Event of Default.................................. 3
Exchange Act...................................... 3
Floating or Adjustable Rate Provision............. 4
Floating or Adjustable Rate Security.............. 4
Global Security................................... 4
Holder............................................ 4
Indenture......................................... 4
interest.......................................... 4
Interest Payment Date............................. 4
Maturity.......................................... 4
Notice of Default................................. 4
Officers' Certificate............................. 4
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Opinion of Counsel................................ 5
Original Issue Discount Security.................. 5
Outstanding....................................... 5
Paying Agent...................................... 6
Person............................................ 6
Place of Payment.................................. 6
Predecessor Security.............................. 6
Principal Subsidiary.............................. 6
Proceeding........................................ 6
Redemption Date................................... 6
Redemption Price.................................. 6
Regular Record Date............................... 6
Responsible Officer............................... 6
Securities........................................ 7
Security Register and Security
Registrar....................................... 7
Special Record Date............................... 7
Stated Maturity................................... 7
Subsidiary........................................ 7
Trustee........................................... 7
Trust Indenture Act............................... 7
U.S. Government Obligations....................... 8
Vice President.................................... 8
Section 102. Compliance Certificates and Opinions.............. 8
Section 103. Form of Documents Delivered to
Trustee......................................... 8
Section 104. Acts of Holders; Record Dates..................... 9
Section 105. Notices, Etc., to Trustee and Company............. 10
Section 106. Notice to Holders; Waiver......................... 11
Section 107. Conflict with Trust Indenture Act................. 11
Section 108. Effect of Headings and Table of
Contents........................................ 11
Section 109. Successors and Assigns............................ 12
Section 110. Separability Clause............................... 12
Section 111. Benefits of Indenture............................. 12
Section 112. Governing Law..................................... 12
Section 113. Legal Holidays.................................... 12
Section 114. Personal Immunity from Liability
for Incorporators, Stockholders,
Etc............................................. 12
ARTICLE TWO
-----------
SECURITY FORMS
Section 201. Forms Generally................................... 13
Section 202. Form of Face of Security.......................... 13
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Section 203. Form of Reverse of Security....................... 16
Section 204. Form of Legend for Global Securities.............. 21
Section 205. Form of Trustee's Certificate of
Authentication.................................. 22
Section 206. Form of Conversion Notice......................... 22
ARTICLE THREE
-------------
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.............. 23
Section 302. Denominations..................................... 26
Section 303. Execution, Authentication, Delivery
and Dating...................................... 26
Section 304. Temporary Securities.............................. 27
Section 305. Registration, Registration of Transfer
and Exchange.................................... 28
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities...................................... 30
Section 307. Payment of Interest; Interest
Rights Preserved................................ 30
Section 308. Persons Deemed Owners............................. 32
Section 309. Cancellation...................................... 32
Section 310. Computation of Interest........................... 32
ARTICLE FOUR
------------
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of
Indenture....................................... 33
Section 402. Application of Trust Fund......................... 34
ARTICLE FIVE
------------
REMEDIES
Section 501. Events of Default................................. 34
Section 502. Acceleration of Maturity; Rescission
and Annulment................................... 37
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee...................... 38
Section 504. Trustee May File Proofs of Claim.................. 39
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Section 505. Trustee May Enforce Claims Without
Possession of Securities........................ 39
Section 506. Application of Money Collected.................... 40
Section 507. Limitation on Suits............................... 40
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Convert......................... 41
Section 509. Restoration of Rights and Remedies................ 41
Section 510. Rights and Remedies Cumulative.................... 41
Section 511. Delay or Omission Not Waiver...................... 42
Section 512. Control by Holders................................ 42
Section 513. Waiver of Past Defaults........................... 42
Section 514. Undertaking for Costs............................. 43
ARTICLE SIX
-----------
THE TRUSTEE
Section 601. Certain Duties and Responsibilities............... 43
Section 602. Notice of Defaults................................ 44
Section 603. Certain Rights of Trustee......................... 45
Section 604. Not Responsible for Recitals or
Issuance of Securities.......................... 46
Section 605. May Hold Securities............................... 46
Section 606. Money Held in Trust............................... 46
Section 607. Compensation and Reimbursement.................... 46
Section 608. Disqualification; Conflicting
Interests....................................... 47
Section 609. Corporate Trustee Required;
Eligibility..................................... 47
Section 610. Resignation and Removal; Appointment of
Successor....................................... 48
Section 611. Acceptance of Appointment by
Successor....................................... 49
Section 612. Merger, Conversion, Consolidation or
Succession to Business.......................... 50
Section 613. Preferential Collection of Claims
Against Company................................. 50
Section 614. Appointment of Authenticating Agent............... 51
ARTICLE SEVEN
-------------
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders............................ 52
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Section 702. Preservation of Information;
Communications to Holders....................... 53
Section 703. Reports by Trustee................................ 53
Section 704. Reports by Company................................ 53
ARTICLE EIGHT
-------------
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 801. Company May Consolidate, Etc., Only on
Certain Terms................................... 54
Section 802. Successor Substituted............................. 54
ARTICLE NINE
------------
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent
of Holders...................................... 55
Section 902. Supplemental Indentures With Consent
of Holders...................................... 56
Section 903. Execution of Supplemental Indentures.............. 57
Section 904. Effect of Supplemental Indentures................. 58
Section 905. Revocation and Effect of Consents................. 58
Section 906. Conformity with Trust Indenture Act............... 58
Section 907. Reference in Securities to
Supplemental Indentures......................... 58
Section 908. Waiver of Compliance by Holders................... 58
ARTICLE TEN
-----------
COVENANTS
Section 1001. Payment of Principal, Premium and
Interest........................................ 59
Section 1002. Maintenance of Office or Agency................... 59
Section 1003. Money for Securities Payments to Be
Held in Trust................................... 59
Section 1004. Statement by Officers as to Default............... 61
Section 1005. Limitations on Liens on Common Stock of
Principal Subsidiaries.......................... 61
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
ARTICLE ELEVEN
--------------
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.......................... 62
Section 1102. Election to Redeem; Notice to Trustee............. 62
Section 1103. Selection by Trustee of Securities to
Be Redeemed..................................... 62
Section 1104. Notice of Redemption.............................. 63
Section 1105. Deposit of Redemption Price....................... 64
Section 1106. Securities Payable on Redemption Date............. 64
Section 1107. Securities Redeemed in Part....................... 65
ARTICLE TWELVE
--------------
CONVERSION OF SECURITIES
Section 1201. Applicability of Article.......................... 65
Section 1202. Exercise of Conversion Privilege.................. 65
Section 1203. No Fractional Shares.............................. 66
Section 1204. Adjustment of Conversion Price.................... 67
Section 1205. Notice of Certain Corporate
Actions......................................... 67
Section 1206. Reservation of Shares of Common
Stock........................................... 68
Section 1207. Payment of Certain Taxes Upon
Conversion...................................... 68
Section 1208. Nonassessability.................................. 69
Section 1209. Effect of Consolidation or Merger
on Conversion Privilege......................... 69
Section 1210. Duties of Trustee Regarding
Conversion...................................... 70
Section 1211. Repayment of Certain Funds Upon
Conversion...................................... 70
ARTICLE THIRTEEN
----------------
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect
Defeasance or Covenant Defeasance............... 71
Section 1302. Defeasance and Discharge.......................... 71
Section 1303. Covenant Defeasance............................... 71
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Section 1304. Conditions to Defeasance or
Covenant Defeasance............................. 72
Section 1305. Deposited Money and U.S. Government
Obligations to be Held In Trust;
Other Miscellaneous Provisions.................. 74
Section 1306. Reinstatement..................................... 74
ARTICLE FOURTEEN
----------------
SINKING FUNDS
Section 1401. Applicability of Article.......................... 75
Section 1402. Satisfaction of Sinking Fund Payments
with Securities................................. 75
Section 1403. Redemption of Securities for Sinking
Fund............................................ 75
TESTIMONIUM..................................................... 76
SIGNATURES AND SEALS............................................ 76
ACKNOWLEDGMENTS................................................. 77
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
INDENTURE, dated as of , 1994, between ORION CAPITAL
-----
CORPORATION, a Delaware corporation (herein called the "Company"), having
its principal office at 30 Rockefeller Plaza, New York, New York 10112, and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association duly organized and existing under the laws of
the United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "Securities"),
to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or the Securities Act of 1933, as amended, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(4) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision unless context
otherwise requires.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either (i) the board of directors of
the Company, the executive committee of such board of directors or any other
duly authorized committee of directors and/or officers appointed by such
board of directors or executive committee, or (ii) one or more duly
authorized officers of the Company to whom the board of directors of the
Company or a committee thereof has delegated the authority to act with
respect to the matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified by
the Corporate Secretary or an Assistant Corporate Secretary of the Company
to have been duly adopted by the Board of Directors or a committee thereof
and to be in full force and effect on the date of such certification or (ii)
a certificate signed by the authorized officer or officers of the Company to
whom the board of directors of the Company or a committee thereof has
delegated its authority (as described in the definition of Board of
Directors), and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means, with respect to the Company, its common
capital stock, par value $1.00 per share, and with respect to any Principal
Subsidiary, stock of any class, however designated, except stock which is
non-participating beyond fixed dividend and liquidation preferences and the
holders of which have either no voting rights or limited voting rights
entitling them, only in the case of certain contingencies, to elect less
than a majority of the directors (or persons performing similar functions)
of such Principal Subsidiary, and shall include securities of any class,
however designated, which are convertible into such Common Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by (i) any two of the following
individuals: the Chairman, a Vice Chairman, the President or a Vice
President, or (ii) by one of the foregoing individuals and by any other Vice
President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary or any other individual authorized by the Board of Directors for
such purpose, and delivered to the Trustee.
"Consolidated Tangible Net Worth" means, at any date, the total
assets appearing on the most recently prepared consolidated balance sheet of
the Company and its Subsidiaries at the end of a fiscal quarter of the
Company, prepared in accordance with generally accepted accounting
principles consistently applied (subject to normal year-end adjustments and
except to the extent an inconsistency results from compliance by the Company
with new financial accounting standards with which the Company's independent
public accountants concur), less (a) the total liabilities appearing on such
balance sheet and (b) intangible assets. For purposes hereof, "intangible
assets" means the value (net of any applicable reserves), as shown on or
reflected in such balance sheet, of (i) all trade names, trademarks,
licenses, patents, copyrights and goodwill; (ii) organizational and
development costs; and (iii) unamortized debt discount and expense, less
unamortized premium; but (iv) excludes deferred policy acquisition costs
and deferred income tax assets.
"Corporate Trust Office" means the principal office of the Trustee
located at 750 Main Street, Suite 1114, Hartford, Connecticut 06103, at
which at any particular time its corporate trust business shall be
administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act
as Depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an indenture
supplemental hereto, providing for the determination, whether pursuant to
objective factors or pursuant to the sole discretion of any Person
(including the Company), and periodic adjustment of the interest rate borne
by a Floating or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security which
provides for interest thereon at a periodic rate that may vary from time to
time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Global Security" means a Security that evidences all or part of
the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section
301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 501(4).
"Officers' Certificate" means a certificate signed by (i) any two
of the following individuals: the Chairman, a Vice Chairman, the President
or a Vice President, or (ii) by one of the foregoing individuals and by any
other Vice President, the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company, or any other individual authorized by the Board
of Directors for such purpose, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1004
shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel to the Company, or who may be other counsel
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
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 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
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such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
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principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (A)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, and (B)
Securities owned by (i) the Company or any other obligor upon the Securities
or (ii) any Subsidiary of the Company or of such other obligor upon the
Securities shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be 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 Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Principal Subsidiary" means any Subsidiary of the Company which
at the time of determination has, (A) assets which, as of the date of the
Company's most recently prepared quarterly consolidated balance sheet,
constituted at least 15% of the Company's total assets on a consolidated
basis as of such date, or (B) revenues for the 12-month period ending on the
date of the Company's most recently prepared quarterly consolidated
statement of income which constituted at least 15% of the Company's total
revenues on a consolidated basis for such period or (C) net earnings for the
12-month period ending on the date of the Company's most recently prepared
quarterly consolidated statement of income which constituted at least 15% of
the Company's total net earnings on a consolidated basis for such period.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the voting power
of which is controlled, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting power" means the
power to vote for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
As of the date hereof, Guaranty National Corporation ("GNC") is
not a Subsidiary and shall not be deemed a "Subsidiary" hereunder at any
time unless at the end of the most recent fiscal quarter of the Company more
than 50% of the voting power of GNC is directly or indirectly controlled by
the Company and/or one or more of its Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act of
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1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended, and except as provided in Section 906.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
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Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 1004) shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions con-
tained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
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In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which its certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or repre-
sentations with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company
or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate, opinion or representation by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know,
that the certificate, opinion or representation with respect to such
accounting matters upon which its certificate, statement or opinion may be
based is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
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(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution
thereof. Where such execution is by a signer acting in a capacity other
than such signer's individual capacity, such certificate or affidavit shall
also constitute sufficient proof of such signer's authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Outstanding Securities of such series. If not set by
the Company prior to the first solicitation of a Holder of Securities of
such series made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard
to any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of such series on such
date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder
to give or take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of
such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
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Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office;
provided, however, that the same shall be made, given, furnished or
filed only when received by a Responsible Officer of the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument; provided,
however, that the same shall be made, given, furnished or filed only
when received by the Company, Attention: Treasurer, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
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Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at its address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice; provided,
however, that the Company or the Trustee, upon a good faith determination
that mailing is in the circumstances impractical, may give such notice by
any other method which, in the reasonable belief of the Company or, in the
case of the Trustee, of the Company and the Trustee, is likely to be
received by the Holders. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 107. Conflict with Trust Indenture Act.
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If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the required provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
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The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
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All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
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In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 111. Benefits of Indenture.
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Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
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THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 113. Legal Holidays.
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In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last day on which a Holder has the
right to convert a Security at a particular conversion price shall not be a
Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of
the Securities of any series which specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal (and
premium, if any) or conversion need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided that no
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interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc.
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No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Security, or for any claim
based thereon, or otherwise in respect of any Security, or based on or in
respect of this Indenture or any indenture supplemental hereto, against any
incorporator, or against any past, present or future stockholder, director
or officer, as such, of the Company or of any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being
expressly waived and released as a condition of, and as consideration for,
the execution of this Indenture and the issue of the Securities.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
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The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form
of Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by the Corporate Secretary or an Assistant Corporate Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
The definitive Securities 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, as evidenced by
their execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
----------------------------------------------------------------
regulations thereunder.]
------------------------
<PAGE>
ORION CAPITAL CORPORATION
-------------------------------------------
No. $
------ ------
ORION CAPITAL CORPORATION, a Delaware corporation (herein called
the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises
to pay to , or
----------------------------------------------------
registered assigns, the principal sum of
---------------------------------
[Dollars] [if the Security is to bear interest prior to Maturity, insert --
-------------------------------------------------------------
and to pay interest thereon from or from the most recent
--------------
Interest Payment Date to which interest has been paid or duly provided for,
[semi-annually on and in each year] [If
--------------- -------------- --
other than semi-annual payments, insert frequency of payments and payment
-------------------------------
dates], commencing , at [If the Security is to bear interest
-------------- -----------------------------------
at a fixed rate, insert -- the rate of % per annum, [If the Security is
--------------- ------ ---- ------------------
a Floating or Adjustable Rate Security, insert -- a rate per annum
-------------------------------------- ------
[computed-determined] in accordance with the [insert defined name of
Floating or Adjustable Rate Provision] set forth below] [If the Security is
------------------
to bear interest at a rate determined with reference to an index, refer to
----------------------------------------------------------------
description of index below] until the principal hereof is paid or made
available for payment [if applicable, insert -- and (to the extent that the
---------------------
payment of such interest shall be legally enforceable) at the rate of %
-----
per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the or
--------------
(whether or not a Business Day), as the case may be, next
--------------
preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture).
[If the Securities are Floating or Adjustable Rate Securities with
-------------------------------------------
respect to which the principal of or any premium or interest may be
-------------------------------------------------------------------
determined with reference to an index, insert the text of the Floating or
-------------------------------------
Adjustable Rate Provision.]
[If the Security is not to bear interest prior to Maturity, insert
-----------------------------------------------------------------
-- The principal of this Security shall not bear interest except in the case
of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the
------
payment of such interest shall be legally enforceable), which shall accrue
from the date of such default in payment to the date payment of such
principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be
-----
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
--
applicable, insert -- any such] interest on this Security will be made at
------------------
the office or agency of the Company maintained for that purpose in
, in such coin or currency of the United States of America
--------------
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of
-------- -------
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register).
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
ORION CAPITAL CORPORATION
By
------------------------------
Attest:
------------------------------
<PAGE>
Section 203. Form of Reverse Security.
------------------------
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of (herein called
--------------
the "Indenture"), between the Company and , as Trustee
---------------------
(herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof [, limited in aggregate
principal amount to $ ].
--------------
[If applicable, insert -- The Securities of this series are
---------------------
subject to redemption upon not less than 30 days' nor more than 60 days'
notice by mail, [if applicable, insert -- (1) on in any year
--------------------- --------------
commencing with the year and ending with the year through
------- -------
operation of the sinking fund for this series at a Redemption Price equal
to 100% of the principal amount, and (2)] at any time [on or after
19 ], as a whole or in part, at the election of the Company,
-------------- --
at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before , % and if
-------------- ----
redeemed] during the 12-month period beginning of the years
--------------
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to of the principal
------------
amount, together in the case of any such redemption [if applicable, insert
---------------------
-- (whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose
stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
---------------------
subject to redemption upon not less than 30 days' nor more than 60 days'
notice by mail, (1) on in any year commencing with the year
---------
and ending with the year through operation of the
---------- ----------
sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [on or
after ], as a whole or in part, at the election of the Company,
----------
at the Redemption Prices for redemption otherwise than through operation of
the sinking fund (expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
----------
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to % of the principal
-----
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity in on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the
---------- ------
year of [not less than $ ("mandatory sinking fund") and not
------ ----------
more than] $ aggregate principal amount of Securities of this
----------
series. Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to
be made [in the inverse order in which they become due).]
[If the Security is subject to redemption, insert -- In the event
----------------------------------------
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time of
(1) the entire indebtedness of this Security or (2) certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth in the Indenture.
[If the Security is convertible into Common Stock of the Company,
----------------------------------------------------------------
insert -- Subject to the provisions of the Indenture, the Holder of this
------
Security is entitled, at its option, at any time on or before [insert date]
-----------
(except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or
portion hereof, as the case may be, so called for redemption at the close of
business on the date fixed for redemption as provided in the Indenture
unless the Company defaults in making the payment due upon redemption), to
convert the principal amount of this Security (or any portion hereof which
is $1,000 or an integral multiple thereof), into fully paid and non-
assessable shares (calculated as to each conversion to the nearest 1/100th
of a share) of the Common Stock of the Company, as said shares shall be
constituted at the date of conversion, at the conversion price of
$ principal amount of Securities for each share of Common Stock,
---------
or at the adjusted conversion price in effect at the date of conversion
determined as provided in the Indenture, upon surrender of this Security,
together with the conversion notice hereon duly executed, to the Company at
the designated office or agency of the Company in ,
-----------------------
accompanied (if so required by the Company) by instruments of transfer, in
form satisfactory to the Company and to the Trustee, duly executed by the
Holder or by its duly authorized attorney in writing. Such surrendering
shall, if made during any period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the Interest
Payment Date next following such Regular Record Date (unless this Security
or the portion being converted shall have been called for redemption on a
Redemption Date during such period), also be accompanied by payment in funds
acceptable to the Company of an amount equal to the Interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment and, in the
case of a conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor Security) of record
at such Regular Record Date to receive an installment of interest (with
certain exceptions provided in the Indenture), no adjustment is to be made
on conversion for interest accrued hereon or for dividends on shares of
Common Stock issued on conversion. The Company is not required to issue
fractional shares upon any such conversion, but shall make adjustment
therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture. The conversion price is subject to
adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the
Company is a party or the sale of substantially all of the assets of the
Company, the Indenture shall be amended, without the consent of any Holders
of Securities, so that this Security, if then outstanding, will be convert-
ible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or sale by a holder of
the number of shares of Common Stock into which this Security might have
been converted immediately prior to such consolidation, merger or sale
(assuming such holder of Common Stock failed to exercise any rights of
election and received per share the kind and amount received per share by a
plurality of non-electing shares) [, assuming if such consolidation, merger
or sale is prior to , 19 , that this Security were convertible at
--------- --
the time of such consolidation, merger or sale at the initial conversion
price specified above as adjusted from to such time pursuant to the
Indenture]. In the event of conversion of this Security in part only, a new
Security or Securities for the unconverted portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other securities or
-------------------------------------------------------
property, specify the conversion features and the form of conversion notice
---------------------------------------------------------------------------
pursuant to Section 206 hereof.]
-------------------------------
[If the Security is not an Original Issue Discount Security,
-----------------------------------------------------------
insert -- If an Event of Default with respect to 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 and with the effect
provided in the Indenture.]
[If the Security is an Original Issue-Discount Security, insert --
--------------------------------------------------------------
If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided
in the Indenture. Such amount shall be equal to -- Insert formula for
------------------
determining the amount. Upon payment (i) of the amount of principal so
----------------------
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]
The Indenture permits the amendment thereof and the modification
of the rights and obligations of the Company and the rights of the Holders
of the Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time outstanding of
each series to be affected, with certain exceptions as therein provided with
respect to certain modifications or amendments which may not be made without
the consent of each Holder of such Security affected thereby. The Indenture
also permits certain amendments and modifications thereto from time to time
by the Company and the Trustee without the consent of the Holders of any
series of the Securities to be affected thereby for certain specified
purposes, including curing ambiguities, defects or inconsistencies and
making any such change that does not adversely affect the rights of any
Holder of such series of the Securities, as provided therein.
The Indenture contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of
transfer hereof or in exchange 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
any premium and Interest on this Security at the times, place and [rate(s)],
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 registerable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
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 certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of
a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
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 is overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of (and
premium, if any) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
------------------------------------
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form or such other legends as
may be required:
This Security is a Global Security within the meaning of
the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee thereof. This
Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof
and no such transfer may be registered, except in the
limited circumstances described in the Indenture. Every
Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, this
Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------------
As Trustee
By
-------------------------------
Authorized Officer
Section 206. Form of Conversion Notice.
-------------------------
To Orion Capital Corporation
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of
Common Stock of the Company in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof
unless a different name has been indicated below. If this Notice is being
delivered on a date after the close of business on a Regular Record Date and
prior to the opening of business on the related Interest Payment Date
(unless this Security or the portion thereof being converted has been called
for redemption on a Redemption Date within such period), this Notice is
accompanied by payment, in funds acceptable to the Company, of an amount
equal to the interest payable on such Interest Payment Date of the principal
of this Security to be converted. If shares are to be issued in the name of
a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect hereto. Any amount required to be paid by the
undersigned on account of interest accompanies this security.
Principal Amount to be Converted
(in an integral multiple of
$1,000, if less than all):
$
-----------
Dated
----------------
---------------------------------
Signature
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a national
stock exchange if shares of Common
Stock are to be delivered, or
Securities to be issued, other than
to and in the name of the regis-
tered owner.
---------------------------------
Signature Guarantee
Fill in for registration of shares of Common Stock and Security if
to be issued otherwise than to the registered holder.
Social Security or other Taxpayer
-----------------------------
(Name) Identifying Number
----------------------------
-----------------------------
(Address)
-----------------------------
Please print Name and Address
(including zip code number)
ARTICLE THREE
The Securities
Section 301. 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. There shall
be established in or pursuant to a Board Resolution or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of
any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which 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 Sections 304, 305, 306, 907 or
1107 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(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, or the Floating or Adjustable Rate Provision
pursuant to which such rates shall be determined, the date or dates
from which such interest shall accrue, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date
for any interest payable on any Interest Payment Date;
(6) whether the Securities of the series would be secured
pursuant to Section 901(6);
(7) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at
which (including premium, if any) and the terms and conditions upon
which Securities of the series shall be redeemed, in whole or in part,
at the option of the Company pursuant to a sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) the terms of any right to convert Securities of the series
into shares of Common Stock of the Company or other securities or
property;
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(12) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with
reference to one or more indices, the manner in which such amounts
shall be determined;
(13) 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 pursuant to
Section 502 or provable under any applicable federal or state
bankruptcy or similar law pursuant to Section 503;
(14) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstance other than
those set forth in Section 305 in which any such Global Security may be
transferred to, and registered and exchanged for Securities registered
in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be
registered;
(15) any other event or events of default applicable with respect
to the Securities of the series in addition to those provided in
Section 501(1) through (7);
(16) any other covenant or warranty included for the benefit of
Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit of
Securities of the series, or any combination of such covenants,
warranties or provisions;
(17) any restriction or condition on the transferability of the
Securities of the series;
(18) any authenticating or paying agents, registrars, conversion
agents or any other agents with respect to the Securities of the
series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of such action shall be delivered to
the Trustee.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The securities shall be executed on behalf of the Company by its
Chairman, a Vice Chairman, its President, any Vice President, its Treasurer
or Assistant Treasurer, its Controller or Assistant Controller under its
corporate seal reproduced thereon attested by its Corporate Secretary or one
of its Assistant Corporate Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
Minor typographical and other minor errors in the text of any Security or
minor defects in the seal or facsimile signature on any Security shall not
affect the validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions or
indentures supplemental hereto as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights gener-
ally and to general equity principles.
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 or if the
Trustee in good faith by its board of directors, executive committee, or a
trust committee of directors or committee of Responsible Officers of the
Trustee shall determine that such action would expose the Trustee to
personal liability to existing Holders of Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Board Resolution
otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Secu-
rities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of
any authorized denominations and of a like aggregate principal amount and
tenor. Until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it or the Trustee may prescribe,
the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 907 or
1107 not involving any transfer.
Neither the Company nor the Trustee shall be required (i) to
issue, register the transfer of or exchange Securities of any series during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day
of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such
Global Security or any nominee thereof, and no such transfer may be
registered, unless (1) such Depositary (A) notifies the Company and the
Trustee that it is unwilling or unable to continue as Depositary for such
Global Security or (B) ceases to be a clearing agency registered under the
Exchange Act, (2) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect to the Securi-
ties evidenced by such Global Security or (4) there shall exist such other
circumstances, if any, as have been specified for this purpose as
contemplated by Section 301. Notwithstanding any other provision in this
Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only to,
and may be registered and exchanged for Securities registered only in the
name or names of, such Person or Persons as the Depositary for such Global
Security shall have directed and no transfer thereof other than such a
transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security to which
the restriction set forth in the first sentence of the preceding paragraph
shall apply, whether pursuant to this Section, Section 304, 306, 907 or 1107
or otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If there shall be delivered to the Company and the Trustee (i) a
mutilated Security, or (ii) evidence to their satisfaction of the
destruction, loss or theft of any Security and in either case such security
or indemnity as may be required by either of them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such mutilated, destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company or the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 15 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at its address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Subject to the provisions of Section 1202, in the case of any
Security which is converted after any Regular Record Date and on or prior to
the next succeeding Interest Payment Date (other than any Security the
principal of (or premium, if any, on) which shall become due and payable,
whether at a Stated Maturity or by declaration of acceleration, call for
redemption, or otherwise, prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on
such Interest Payment Date notwithstanding such conversion and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or any one or more Predecessor
Securities) is registered at the close of business on such Regular Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest whose
Stated Maturity is after the date of conversion of such Security shall not
be payable.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a 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 such Security is registered as
the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment or
for conversion shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancella-
tion any Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of as directed by a Company Order.
Acquisition by the Company of any Security shall not operate as a redemption
or satisfaction of the indebtedness represented by such Security unless and
until the same is delivered to the Trustee for cancellation.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, registration of
transfer or exchange of Securities of a series herein expressly provided
for) with respect to Securities of any series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to a series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306
and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee in trust irrevocably (A)
money (in United States dollars) in an amount, or (B) U.S. Government
Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient to pay and
discharge the entire indebtedness on such Securities of such series not
theretofore delivered to the Trustee for cancellation, for principal of
(and premium, if any) and interest to the date of such deposit (in the
case of Securities of such series which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
In the event there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an
instrument acknowledging satisfaction and discharge of this Indenture only
if requested to do so with respect to Securities of a particular series as
to which it is Trustee and if the other conditions thereto are met. In the
event that there are two or more Trustees hereunder, then the effectiveness
of any such instrument shall be conditioned upon receipt of such instruments
from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to a particular series, the obligations of the Company to the
Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive until there are no Securities
Outstanding with respect to a particular series and the obligations of the
Company and the Trustee with respect to all other series of Securities shall
survive.
Section 402. Application of Trust Fund.
-------------------------
Subject to provisions of the last paragraph of Section 1003, all
amounts deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such funds have been deposited with
the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default" whenever used with respect to Securities of a
series means any one of the following events and such other events as may be
established with respect to the Securities of such series as contemplated by
Section 301 hereof:
(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
(2) Default in the payment 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 redemption, by
declaration of acceleration or otherwise; or
(3) Default in the making of any sinking fund payment, whether
mandatory or optional, 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 Company duly to observe or perform
in any material respect any other of the covenants or agreements on the
part of the Company contained in this Indenture (other than those set
forth exclusively in the terms of any other particular series of
Securities established as contemplated by this Indenture for the
benefit of such other series) and written notice of such failure,
stating that such notice is a "Notice of Default" hereunder, and
requiring the Company to remedy the same, shall have been given by
registered or certified mail, return receipt requested, to the Company
by the Trustee, or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Outstanding Securities
of that series, and such failure shall have continued unremedied for a
period of 90 days after the date of the Company's receipt of such
Notice of Default; or
(5) (i) An event of default, as defined in any indenture or
instrument evidencing or under which the Company or any Principal
Subsidiary shall have outstanding indebtedness for borrowed money in a
principal amount in excess of $40,000,000, shall happen and be
continuing and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which
the same would otherwise have become due and payable or (ii) the
Company or any Principal Subsidiary shall default in the payment at
final maturity of outstanding indebtedness for borrowed money in a
principal amount in excess of $40,000,000, and such acceleration or
default at maturity shall not be waived, rescinded or annulled within
30 days after written notice thereof, stating that such notice is a
"Notice of Default" hereunder, sha11 have been given to the Company by
the Trustee (if such event be known to it), or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series; provided, however, that if
-------- -------
such acceleration under such indenture or instrument or default at
maturity shall be remedied or cured by the Company or Principal Sub-
sidiary, or waived, rescinded or annulled by the requisite holders of
such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or
any of the Holders; and provided further, that, subject to the
--- -------- -------
provisions of Sections 601 and 602, the Trustee shall not be charged
with knowledge of any such default unless written notice thereof shall
have been given to the Trustee by the Company, by the holder of any
such indebtedness or an agent of the holder of any such indebtedness,
by the trustee then acting under any such indenture or other instrument
under which such default shall have occurred, or by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities
of that series; or
(6) A decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of the Company
under any applicable Federal or State bankruptcy or similar law, and
such decree or order shall have continued undischarged and unstayed for
a period of 90 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or of all or substantially all
of its property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or
(7) The Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment or composition under
any applicable Federal or State bankruptcy or similar law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver, liquidator, trustee, assignee, sequestrator
or similar official in bankruptcy or insolvency of the Company or of
all or substantially all of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due and its willingness to be
adjudged a bankrupt, or corporate action shall be taken by the Company
in furtherance of any of the aforesaid purposes.
Upon receipt by the Trustee of any Notice of Default pursuant to
this Section 501 with respect to Securities of any series, a record date
shall automatically and without any other action by any Person be set for
the purpose of determining the holders of Outstanding Securities of such
series entitled to join in such Notice of Default, which record date shall
be the close of business on the day the Trustee receives such Notice of
Default. The Holders of Outstanding Securities of such series on such
record date (or their duly appointed agents), and only such Persons, shall
be entitled to join in such Notice of Default, whether or not such Holders
remain Holders after such record date; provided that, unless such Notice of
--------
Default shall have become effective by virtue of Holders of at least 25% in
principal amount of Outstanding Securities of such series on such record
date (or their duly appointed agents) having joined therein on or prior to
the 90th day after such record date, such Notice of Default shall
automatically and without any action by any Person be cancelled and of no
further effect.
The Company shall deliver to the Trustee written notice of any
Event of Default under clauses (5), (6) and (7) hereof within 30 days of the
knowledge thereof by the Company.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may
be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter
in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences
if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel except such costs and ex-
penses as are a result of negligence or bad faith on the part of
the Trustee;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and interest, if
any, on the Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or
any rescission and annulment of any such declaration, pursuant to this
Section 502 with respect to Securities of any series, a record date shall
automatically and without any other action by any Person be set for the
purpose of determining the Holders of Outstanding Securities of such series
entitled to join in such declaration, or rescission and annulment, as the
case may be, which record date shall be the close of business on the day the
Trustee receives such declaration, or rescission and annulment, as the case
may be. The Holders of Outstanding Securities of such series on such record
date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such declaration, or rescission and annulment, as the
case may be, whether or not such Holders remain Holders after such record
date; provided that, unless such declaration, or rescission and annulment,
--------
as the case may be, shall have become effective by virtue of Holders of at
least 25%, in the case of any declaration of acceleration, or a majority, in
the case of any rescission or annulment, in principal amount of Outstanding
Securities of such series on such record date (or their duly appointed
agents) having joined therein on or prior to the 90th day after such record
date, such declaration, or rescission and annulment, as the case may be,
shall automatically and without any action by any Person be cancelled and of
no further effect.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
-------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
except such costs and expenses, as are a result of negligence or bad faith
on the part of the Trustee. Until such demand is made by the Trustee, the
Company may pay the principal of and premium, if any, and interest, if any,
on the Securities of any series to the registered holders, whether or not
the Securities of such series are overdue.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed
in any such proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 607 except such costs and expenses, as are a
result of negligence or bad faith on the part of the Trustee.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the
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Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
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All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel except such costs and expenses, as are a
result of negligence or bad faith on the part of the Trustee, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable an such Securities for principal and any
premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory in form and substance to the Trustee against
the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert.
----------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which in absolute and unconditional,
to receive payment of the principal of and any premium and (subject to
Section 307) any interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to convert such Securities in accordance with Article
Twelve and to institute suit for the enforcement of any such payment or such
right of conversion, and such rights shall not be impaired without the
consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Subject to Section 507,
every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with respect to
the Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of any series, a record date shall be set for determining the
Holders of Outstanding Securities of such series entitled to join in such
direction, which record date shall be the close of business on the day the
Trustee receives such direction. The Holders of Outstanding Securities of
such series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to join in such direction, whether or not
such Holders remain Holders after such record date; provided that, unless
--------
such direction shall have become effective by virtue of Holders of at least
a majority in principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents) having joined therein on
or prior to the 90th day after such record date, such direction shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder (or a duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a direction contrary to or different from, or, after the
expiration of such period, identical to, a direction that has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to this paragraph.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such
suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act.
(a) If an Event of Default with respect to securities of any
Series at the time Outstanding has occurred and is continuing, the
Trustee shall exercise 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, in the absence of bad faith on its part, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. The Trustee, however,
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture but need
not verify the accuracy of the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 512.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money
held in trust by the Trustee need not be segregated from other funds,
except to the extent required by law.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default or an Event of Default occurs and is continuing
hereunder with respect to Securities of any series, and if such default or
Event of Default is known to a Responsible Officer or the Trustee, the
Trustee shall mail the Holders of Securities of such series notice of such
default within 90 days after it occurs; provided, however, that in the case
-------- -------
of any default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. Except in the case of a default
in payment on any Security of any series, the Trustee may withhold notice if
and so long as a trust committee of Responsible Officers of the Trustee in
good faith determines that withholding the notice is in the interest of
Holders of securities of such series. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such Counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory in form and substance to the Trustee against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall upon reasonable notice to the
Company be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at a time and place
acceptable to the Company;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its written request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation, and reasonable expenses and disbursements of
its agents and outside counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts and the performance
of its duties hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property
of the Company held or collected by the Trustee in its capacity as Trustee
or as Paying Agent hereunder (but not in any other capacity), except that
held in trust to pay principal of (and premium, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(6) or (7) occurs with respect to
any series of Securities, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Federal or
State bankruptcy law or similar law.
The Company's obligations under this Section 607 and any lien
arising hereunder shall survive the resignation or removal of the Trustee,
the discharge of the Company's obligations pursuant to Article Four or
Article Thirteen hereof and the termination of this Indenture.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000 or is a
subsidiary of a corporation which shall be a Person that has a combined
capital and surplus of at least $50,000,000 and which unconditionally
guarantees the obligations of the Trustee hereunder. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or be incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any Series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supple-
mental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or
desirable to transfer the rights, powers, trust and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustee co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may with the consent of the Company appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer, partial conversion or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the pur-
poses of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee or the
Company may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company or the Trustee, as the case may be. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------
As Trustee
By
--------------------------
As Authenticating Agent
By
--------------------------
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 10 days after each Regular
Record Date in each year, a list for each series of Securities, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Securities of such series as of the preceding Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
---------
its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. To the extent that any such report is required by the Trust
Indenture Act with respect to any 12 month period, such report shall cover
the 12 month period ending July 15 and shall be transmitted by the next
succeeding September 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
--------
such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
Person or sell its properties and assets as, or substantially as, an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or sell its properties and assets as, or substantially
as, an entirety to any Person, the Person formed by such consolidation
or into which the Company is merged or the Person which purchases the
properties and assets of the Company as, or substantially as, an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed and the conversion rights, if any, shall be provided for in
accordance with Article Twelve, by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee, by the
Person (if other than the Company) formed by such consolidation or into
which the Company shall have been merged or by the corporation which
shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no Event
of Default shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, or sale and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale of the properties and assets of
the Company as, or substantially as, an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and
the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
--------
any such addition, change or elimination (i) shall neither (A) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with re-
spect to such provision or (ii) shall become effective only when there
is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of
Section 1005, or to otherwise secure the Securities of any series; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the 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 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause
--------
shall not adversely affect the interests of the Holders of Securities
of any series in any material respect; or
(10) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article Twelve, including
providing for the conversion of the securities into any security (other
than the Common Stock of the Company) or property of the Company; or
(11) to conform to any mandatory provisions of law.
Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority of
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
-------- -------
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (including any
change in the Floating or Adjustable Rate Provision pursuant to which
such rate is determined that would reduce such rate for any period) or
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment where,
or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) if applicable, make any change that adversely affects the
right to convert any security to which the provisions of Article Twelve
are applicable or, except as provided in this Indenture, decrease the
conversion rate or increase the conversion price of any such security,
or
(4) modify any of the provisions of this Section, Section 513 or
Section 908, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
-------- -------
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 908, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and,
with respect to supplemental indentures under Section 902 hereof, evidence
of the consents of Holders required in connection therewith. The Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Revocation and Effect of Consents.
---------------------------------
Until an amendment or supplement under this Article or a waiver
under this Article becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver
becomes effective.
After an amendment or supplement becomes effective, it shall bind
every Holder.
Section 906. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 907. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 908. Waiver of Compliance by Holders.
-------------------------------
Anything in this Indenture to the contrary notwithstanding, any of
the acts which the Company is required to do, or is prohibited from doing,
by any of the provisions of this Indenture may, to the extent that such
provisions might be changed or eliminated by a supplemental indenture
pursuant to Section 902 upon consent of Holders of not less than a majority
in aggregate principal amount of the then Outstanding Securities of the
series affected, be omitted or done by the Company, if there is obtained the
prior consent or waiver of the Holders of at least a majority in aggregate
principal amount of the then Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series
in accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
So long as any Securities are Outstanding, the Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer or exchange, where Securities of that series may be surrendered
for conversion and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presen-
tations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
-------- -------
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (i) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (ii) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust
by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
-------- -------
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the request and expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, the City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a
certificate signed by the Company's principal executive officer, principal
financial officer or principal accounting officer stating to the best
knowledge of the signer thereof whether or not the Company has complied
during such immediately preceding fiscal year with and is in compliance with
all terms, conditions and covenants of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and if the
signer has obtained knowledge of any continuing default by the Company in
the performance, observation or fulfillment of any such term, condition or
covenant, specifying each such default and the nature thereof.
Section 1005. Limitations on Liens on Common Stock of Principal
Subsidiaries.
-------------------------------------------------
So long as any of the Securities remains Outstanding, the Company
will not, and will not permit any Principal Subsidiary to, issue, assume,
incur or guarantee any indebtedness for borrowed money secured by a
mortgage, pledge, lien or other encumbrance in the nature of a lien ("Lien")
on any of the Common Stock of a Principal Subsidiary, which Common Stock is
owned by the Company or by any Principal Subsidiary, without effectively
providing that the Securities of each series, the 9 1/8% Senior Notes if and
to the extent then required by the terms of the 9 1/8% Senior Notes
Indenture, and, if the Company so elects, any other indebtedness of the
Company ranking senior to or on a parity with the Securities, shall be
equally and ratably secured with, or prior to, such secured indebtedness for
borrowed money so long as such secured indebtedness shall be so secured,
unless after giving effect thereto, the aggregate amount of all such secured
indebtedness of the Company and its Subsidiaries would not exceed 15% of
Consolidated Tangible Net Worth of the Company and its Subsidiaries as
reflected on the Company's most recently prepared quarterly balance sheet;
provided, however, that this covenant shall not apply to, and there shall be
-------- -------
excluded from secured indebtedness in any computation under this covenant,
indebtedness secured by: (i) Liens existing on the date hereof; (ii) Liens
on any shares of common stock of any corporation existing at the time such
corporation becomes a Principal Subsidiary or merges into or consolidates
with the Company or any Principal Subsidiary; (iii) Liens on shares of
common stock of any Person existing at the time of acquisition thereof by
the Company or any Principal Subsidiary; (iv) Liens to secure the financing
of the acquisition, construction or improvement of property, or the
acquisition of shares of stock, hereafter acquired, constructed or improved
by the Company or any Subsidiary, provided that such Liens are created prior
to, at the time of or within one year after such acquisition or, in the case
of property, completion of construction or commencement of commercial
operation, whichever is later; (v) Liens in favor of the Company or any
Subsidiary; (vi) Liens required by or in favor of governments or agencies
thereof including those to secure progress, advance or other payments
pursuant to any contract or provisions of any statute; (vii) Liens in the
nature of rights of set-off or statutory bankers' liens pursuant to any
contract or statute; and (viii) any extension, renewal or replacement (or
successive extensions, renewals or replacements), as a whole or in part, of
any Lien referred to in the foregoing clauses (i) to (vii), inclusive,
provided, further, that (a) such extension, renewal or replacement Lien
-------- -------
shall be limited to all or a part of the same shares of stock that secured
the Lien extended, renewed or replaced and (b) the indebtedness secured by
such Lien at such time is not increased.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed,
the specific provision of the Securities of such series pursuant to which
such Securities being called for redemption are being redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to
be redeemed), the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding
sentence.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) if applicable, the conversion price, and that the date on
which the right to convert the principal of the Securities or the
portions thereof to be redeemed will terminate will be the Redemption
Date and the place or places where such Securities may be surrendered
for conversion,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date, other than any
Securities called for redemption on that date which have been converted
prior to the date of such deposit.
If any Security or portion thereof called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or
so segregated and held in trust for the redemption of such Security or
portion thereof shall (subject to any right of the Holder of such Security
or any Predecessor Security to receive interest as provided in the last
paragraph of Section 307) be paid to the Company upon Company Request or, if
then held by the Company, shall be discharged from such trust.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
-------- -------
that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor
in the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Security or Securities of the
same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Conversion of Securities
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into shares of Common Stock
of the Company, and the issuance of such shares of Common Stock upon the
conversion of such Securities, except as otherwise specified as contemplated
by Section 301 for the Securities of such series.
Section 1202. Exercise of Conversion Privilege.
--------------------------------
In order to exercise a conversion privilege, the Holder of a
Security of a series with such a privilege shall surrender such Security to
the Company at the office or agency maintained for that purpose pursuant to
Section 1002, accompanied by written notice to the Company that the Holder
elects to convert such Security or a specified portion thereof. Such notice
shall also state, if different from the name and address of such Holder, the
name or names (with address) in which the certificate or certificates for
shares of Common Stock which shall be issuable on such conversion shall be
issued. Securities surrendered for conversion shall (if so required by the
Company or the Trustee) be duly endorsed by or accompanied by instruments of
transfer in forms satisfactory to the Company and the Trustee duly executed
by the registered Holder or its attorney duly authorized in writing; and
Securities so surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date (excluding Securities or portions thereof
called for redemption during such period) shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of
such Security then being converted, and such interest shall be payable to
such registered Holder notwithstanding the conversion of such Security,
subject to the provisions of Section 307 relating to the payment of
Defaulted Interest by the Company. As promptly as practicable after the
receipt of such notice and of any payment required pursuant to a Board
Resolution and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such
reasonable regulations as the Company may prescribe, the Company shall issue
and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance
with the provisions of such Board Resolution, Officers' Certificate or
supplemental indenture, and cash as provided therein in respect of any
fractional share of such Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice
and such payment, if required, shall have been received in proper order for
conversion by the Company and such Security shall have been surrendered as
aforesaid (unless such Holder shall have so surrendered such Security and
shall have instructed the Company to effect the conversion on a particular
date following such surrender and such Holder shall be entitled to convert
such Security on such date, in which case such conversion shall be deemed to
be effected immediately prior to the close of business on such date) and at
such time the rights of the Holder of such Security as such Security Holder
shall cease and the person or persons in whose name or names any certificate
or certificates for shares of Common Stock of the Company shall be issuable
upon such conversion shall be deemed to have become the Holder or Holders of
record of the shares represented thereby. Except as set forth above and
subject to the final paragraph of Section 307, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the
Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unconverted
portion of such Security.
Section 1203. No Fractional Shares.
--------------------
No fractional share of Common Stock of the Company shall be issued
upon conversions of Securities of any series. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion shall be
computed on the basis of the aggregate principal amount of the Securities
(or specified portions thereof to the extent permitted hereby) so
surrendered. If, except for the provisions of this Section 1203, any Holder
of a Security or Securities would be entitled to a fractional share of
Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such
Holder an amount in cash equal to the current market value of such
fractional share computed, (i) if such Common Stock is listed or admitted to
unlisted trading privileges on a national securities exchange, on the basis
of the last reported sale price regular way on such exchange on the last
trading day prior to the date of conversion upon which such a sale shall
have been effected, or (ii) if such Common Stock is not at the time so
listed or admitted to unlisted trading privileges on a national securities
exchange, on the basis of the average of the bid and asked prices of such
Common Stock in the over-the-counter market, on the last trading day prior
to the date of conversion, as reported by the National Quotation Bureau,
Incorporated or similar organization if the National Quotation Bureau,
Incorporated is no longer reporting such information, or if not so
available, the fair market price as determined by the Board of Directors.
For purposes of this Section, "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day an which the Common Stock
is not traded on the New York Stock Exchange, or if the Common Stock is not
traded on the New York Stock Exchange, on the principal exchange or market
on which the Common Stock is traded or quoted.
Section 1204. Adjustment of Conversion Price.
------------------------------
The conversion price of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any stock
dividends, stock splits, reclassification, combinations or similar
transactions in accordance with the term of the supplemental indenture or
Board Resolutions setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officers' Certificate setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section
1002 and, if different, with the Trustee. The Company shall forthwith cause
a notice setting forth the adjusted conversion price to be mailed, first
class postage prepaid, to each Holder of Securities of such series at its
address appearing on the Security Register and to any conversion agent other
than the Trustee.
Section 1205. Notice of Certain Corporate Actions.
-----------------------------------
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its retained earnings (other than a dividend for which approval of any
shareholders of the Company is required); or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights (other than any such grant for which approval of any
shareholders of the Company is required); or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock, or of any consolidation, merger or share exchange to
which the Company is a party and for which approval of any shareholders
of the Company is required), or of the sale of all or substantially all
of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause
to be mailed to all Holders at their last addresses as they shall appear in
the Securities Register, at least 20 days (or 10 days in any case specified
in clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights, options or warrants,
or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution,
rights, options or warrants are to be determined, or (ii) the date on which
such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities,
cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or
winding up. If at any time the Trustee shall not be the conversion agent, a
copy of such notice shall also forthwith be filed by the Company with the
Trustee.
Section 1206. Reservation of Shares of Common Stock.
-------------------------------------
The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock, for
the purpose of effecting the conversion of Securities, the full number of
shares of Common stock of the Company then issuable upon the conversion of
all outstanding Securities of any series that has conversion rights.
Section 1207. Payment of Certain Taxes Upon Conversion.
----------------------------------------
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of its Common Stock on conversion
of Securities pursuant hereto. The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved in
the issue and delivery of shares of its Common Stock in a name other than
that of the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of any such tax, or has
established, to the satisfaction of the Company, that such tax has been
paid.
Section 1208. Nonassessability.
----------------
The Company covenants that all shares of its Common Stock which
may be issued upon conversion of Securities will upon issue in accordance
with the terms hereof be duly and validly issued and fully paid and
nonassessable.
Section 1209. Effect of Consolidation or Merger on Conversion Privilege.
---------------------------------------------------------
In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding of any series
that is convertible into Common Stock of the Company shall have the right,
which right shall be the exclusive conversion right thereafter available to
said Holder (until the expiration of the conversion right of such Security),
to convert such Security into the kind and amount of shares of stock or
other securities or property (including cash) receivable upon such
consolidation, merger or sale by a holder of the number of shares of Common
Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture, such Security and
such supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidations, mergers or
sales. It is expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of Common Stock of the
Company do not receive shares of common stock of the surviving corporation
but receive other securities, cash or other property or any combination
thereof, Holders of Securities shall not have the right to thereafter
convert their Securities into common stock of the surviving corporation or
the corporation which shall have acquired such assets, but rather, shall
have the right upon such conversion to receive the other securities, cash or
other property receivable by a holder of the number of shares of Common
Stock of the Company into which the Securities held by such holder might
have been converted immediately prior to such consolidation, merger or sale,
all as more fully provided in the first sentence of this Section 1209.
Anything in this Section 1209 to the contrary notwithstanding, the
provisions of this Section 1209 shall not apply to a merger or consolidation
of another corporation with or into the Company pursuant to which both of
the following conditions are applicable: (i) the Company is the surviving
corporation and (ii) the outstanding shares of Common Stock of the Company
are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant
to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly
be convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate
or opinion of an independent certified public accountant with respect
thereto; and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely thereon, and shall not be responsible or
accountable to any Holder of Securities for any provision in conformity
therewith or approved by such independent certified accountant which may be
contained in said supplemental indenture.
Section 1210. Duties of Trustee Regarding Conversion.
--------------------------------------
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series
that is convertible into Common Stock of the Company to determine whether
any facts exist which may require any adjustment of the conversion price, or
with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock of the Company, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any
Securities and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Subject to the provisions of Section
601, neither the Trustee nor any conversion agent shall be responsible for
any failure of the Company to issue, transfer or deliver any shares of its
Common Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or to comply with
any of the covenants of the Company contained in this Article Twelve or in
the applicable supplemental indenture, resolutions of the Board of Directors
or written instrument executed by one or more duly authorized officers of
the Company.
Section 1211. Repayment of Certain Funds Upon Conversion.
------------------------------------------
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other paying agent for the
purpose of paying the principal of, and premium, if any, and interest, if
any, on any of the Securities (including funds deposited for the sinking
fund referred to in Article Three hereof) and which shall not be required
for such purposes because of the conversion of such Securities as provided
in this Article Twelve shall after such conversion be repaid to the Company
by the Trustee upon the Company's written request by Company Request.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at any time, to have either Section 1302 or
Section 1303 applied to the Outstanding Securities of any series, upon
compliance with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 1301
to have this Section 1302 applied to the Outstanding Securities of any
series, the Company shall be deemed to have been discharged from its
obligations, with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as the
Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of Securities of such
series to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the prin-
cipal of and any premium and interest on such Securities of such series when
payments are due, (2) the Company's obligations with respect to the
Securities of such series under Sections 304, 305, 306, 1002 and 1003, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, its rights under Section 607 and (4) this
Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option provided in Section 1301 to have this
Section 1302 applied to the Outstanding Securities of any series
notwithstanding the prior exercise of its option provided in Section 1301 to
have Section 1303 applied to the Outstanding Securities of such series.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 1301
to have this Section 1303 applied to the Outstanding Securities of any
series, (1) the Company shall be released from its obligations under Section
1005 and Section 801 and (2) the occurrence of any event specified in
Sections 501(3), 501(4) (with respect to Section 1005 and Section 801) and
501(5) shall be deemed not to be or result in an Event of Default, in each
case with respect to the Outstanding Securities of such series as provided
in this Section on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so
specified in the case of Section 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of
any reference in any such Section to any other provision herein or in any
other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (i) money in an
amount, or (ii) U.S. Government Obligations that through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Securities of such
series. As used herein, "U.S. Government Obligation" means (x) any
security that is (i) a direct obligation of the United States of
America for the payment of which full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality
for the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to
any specific payment of principal of or interest on any such U.S.
Government Obligation specified in Clause (x) and held by such
custodian for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
such U.S. Government Obligation, provided that (except as required by
--------
law) such custodian is not authorized to make any deduction from the
amount payable to the Holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service, a ruling or (ii) since the date hereof, there
has been a change in the applicable Federal income tax law, in case of
either (i) or (ii) to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holder of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as result of the
deposit and Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of
such deposit.
(5) No Event of Default or event that (after notice or lapse of
time or both) would become an Event of Default shall have occurred and
be continuing at the time of such deposit or, with regard to any Event
of Default or any such event specified in Sections 501(6) and 501(7),
at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
(7) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
Section 1305. Deposited Money and U.S. Government Obligations
to be Held In Trust; Other Miscellaneous Provisions.
---------------------------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes
of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1304 in
respect of the Securities of any Defeasible Series shall be held in trust
and applied by the Trustee, in accordance with the provisions of the
Securities of such series and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of
Securities of such series, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
that by law is for the account of the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as
provided in Section 1304 with respect to Securities of any Defeasible Series
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to
be deposited to effect an equivalent Defeasance or Covenant Defeasance with
respect to the Securities of such series.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Thirteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities of
such series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Thirteen with respect to Securities of
such series until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 1305 with respect to
Securities of such series in accordance with this Article Thirteen;
provided, however, that if the Company makes any payment of principal of or
-------- -------
any premium or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of Securities of such series to receive such payment
from the money so held in trust.
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of 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 Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1211. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
Section 1402. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series which have been converted pursuant to Article
Twelve or Securities of a series which have been acquired or redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities or otherwise, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
--------
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1403. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30 nor more
than 60 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104 and provide a copy thereof to the Company.
Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 1106 and 1107.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
ORION CAPITAL CORPORATION
By
---------------------------
Attest:
-------------------------
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Trustee
By
---------------------------
Attest:
--------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1994, before me personally came
---- -----------
, to me known, who, being by me duly sworn, did
-----------------------------
depose and say that (s)he is of ORION CAPITAL
-----------------------------
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
(s)he signed her/his name thereto by like authority.
-------------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1994, before me personally came
---- ------------
, to me known, who, being by me duly sworn, did
-----------------------------
depose and say that (s)he is of STATE STREET BANK AND
----------------------
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, one of the corporations
described in and which executed the foregoing instrument; that (s)he knows
the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that (s)he signed her/his name thereto by
like authority.
-------------------------------
<PAGE>
EXHIBIT 4.9
<PAGE>
ORION CAPITAL CORPORATION
TO
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
TRUSTEE
--------------------
INDENTURE
Dated as of , 1994
-----
--------------------
Subordinated Debt Securities
<PAGE>
ORION CAPITAL CORPORATION
Reconciliation and tie between certain Sections of
this Indenture, dated as of , 1994,and
-----
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1) ....................................... 609
(a)(2) ....................................... 609
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(b) ....................................... 608
610
311(a) ....................................... 613
(b) ....................................... 613
312(a) ....................................... 701
702(a)
(b) ....................................... 702(b)
(c) ....................................... 702(c)
313(a) ....................................... 703(a)
(b) ....................................... 703(a)
(c) ....................................... 703(a)
(d) ....................................... 703(b)
314(a) ....................................... 704
(a)(4) ....................................... 101
1004
(b) ....................................... Not Applicable
(c)(1) ....................................... 102
(c)(2) ....................................... 102
(c)(3) ....................................... Not Applicable
(d) ....................................... Not Applicable
(e) ....................................... 102
315(a) ....................................... 601
(b) ....................................... 602
(c) ....................................... 601
(d) ....................................... 601
(e) ....................................... 514
316(a) ....................................... 101
(a)(1)(A) ....................................... 502
512
(a)(1)(B) ....................................... 513
(a)(2) ....................................... Not Applicable
(b) ....................................... 508
(c) ....................................... 104(c)
317(a)(1) ....................................... 503
(a)(2) ....................................... 504
(b) ....................................... 1003
318(a) ....................................... 107
------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
PARTIES......................................................... 1
RECITALS OF THE COMPANY......................................... 1
ARTICLE ONE
-----------
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions....................................... 1
Act............................................... 2
Authenticating Agent.............................. 2
Board of Directors................................ 2
Board Resolution.................................. 2
Business Day...................................... 2
Commission........................................ 2
Common Stock...................................... 2
Company........................................... 3
Company Request; Company Order.................... 3
Consolidated Tangible Net Worth................... 3
Corporate Trust Office............................ 3
corporation....................................... 3
Covenant Defeasance............................... 3
Debt.............................................. 3
Defaulted Interest................................ 4
Defeasance........................................ 4
Depositary........................................ 4
Event of Default.................................. 4
Exchange Act...................................... 4
Floating or Adjustable Rate Provision............. 4
Floating or Adjustable Rate Security.............. 4
Global Security................................... 4
Holder............................................ 4
Indenture......................................... 4
interest.......................................... 4
Interest Payment Date............................. 5
Maturity.......................................... 5
Notice of Default................................. 5
Officers' Certificate............................. 5
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Opinion of Counsel................................ 5
Original Issue Discount Security.................. 5
Outstanding....................................... 5
Paying Agent...................................... 6
Person............................................ 6
Place of Payment.................................. 6
Predecessor Security.............................. 6
Principal Subsidiary.............................. 6
Proceeding........................................ 7
Redemption Date................................... 7
Redemption Price.................................. 7
Regular Record Date............................... 7
Responsible Officer............................... 7
Securities........................................ 7
Security Register and Security
Registrar....................................... 7
Senior Debt....................................... 7
Special Record Date............................... 8
Stated Maturity................................... 8
Subsidiary........................................ 8
Trustee........................................... 8
Trust Indenture Act............................... 8
U.S. Government Obligations....................... 8
Vice President.................................... 8
Section 102. Compliance Certificates and Opinions.............. 8
Section 103. Form of Documents Delivered to
Trustee......................................... 9
Section 104. Acts of Holders; Record Dates..................... 10
Section 105. Notices, Etc., to Trustee and Company............. 11
Section 106. Notice to Holders; Waiver......................... 11
Section 107. Conflict with Trust Indenture Act................. 12
Section 108. Effect of Headings and Table of
Contents........................................ 12
Section 109. Successors and Assigns............................ 12
Section 110. Separability Clause............................... 12
Section 111. Benefits of Indenture............................. 13
Section 112. Governing Law..................................... 13
Section 113. Legal Holidays.................................... 13
Section 114. Personal Immunity from Liability
for Incorporators, Stockholders,
Etc............................................. 13
ARTICLE TWO
-----------
SECURITY FORMS
Section 201. Forms Generally................................... 14
Section 202. Form of Face of Security.......................... 14
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 203. Form of Reverse of Security....................... 17
Section 204. Form of Legend for Global Securities.............. 22
Section 205. Form of Trustee's Certificate of
Authentication.................................. 23
Section 206. Form of Conversion Notice......................... 23
ARTICLE THREE
-------------
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.............. 24
Section 302. Denominations..................................... 27
Section 303. Execution, Authentication, Delivery
and Dating...................................... 27
Section 304. Temporary Securities.............................. 28
Section 305. Registration, Registration of Transfer
and Exchange.................................... 29
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities...................................... 30
Section 307. Payment of Interest; Interest
Rights Preserved................................ 31
Section 308. Persons Deemed Owners............................. 33
Section 309. Cancellation...................................... 33
Section 310. Computation of Interest........................... 33
ARTICLE FOUR
------------
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of
Indenture....................................... 33
Section 402. Application of Trust Fund......................... 35
ARTICLE FIVE
------------
REMEDIES
Section 501. Events of Default................................. 35
Section 502. Acceleration of Maturity; Rescission
and Annulment................................... 37
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee...................... 39
Section 504. Trustee May File Proofs of Claim.................. 40
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 505. Trustee May Enforce Claims Without
Possession of Securities........................ 40
Section 506. Application of Money Collected.................... 40
Section 507. Limitation on Suits............................... 41
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Convert......................... 42
Section 509. Restoration of Rights and Remedies................ 42
Section 510. Rights and Remedies Cumulative.................... 42
Section 511. Delay or Omission Not Waiver...................... 42
Section 512. Control by Holders................................ 43
Section 513. Waiver of Past Defaults........................... 43
Section 514. Undertaking for Costs............................. 44
ARTICLE SIX
-----------
THE TRUSTEE
Section 601. Certain Duties and Responsibilities............... 44
Section 602. Notice of Defaults................................ 45
Section 603. Certain Rights of Trustee......................... 46
Section 604. Not Responsible for Recitals or
Issuance of Securities.......................... 47
Section 605. May Hold Securities............................... 47
Section 606. Money Held in Trust............................... 47
Section 607. Compensation and Reimbursement.................... 47
Section 608. Disqualification; Conflicting
Interests....................................... 48
Section 609. Corporate Trustee Required;
Eligibility..................................... 48
Section 610. Resignation and Removal; Appointment of
Successor....................................... 48
Section 611. Acceptance of Appointment by
Successor....................................... 50
Section 612. Merger, Conversion, Consolidation or
Succession to Business.......................... 51
Section 613. Preferential Collection of Claims
Against Company................................. 51
Section 614. Appointment of Authenticating Agent............... 51
ARTICLE SEVEN
-------------
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders............................ 53
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 702. Preservation of Information;
Communications to Holders....................... 54
Section 703. Reports by Trustee................................ 54
Section 704. Reports by Company................................ 54
ARTICLE EIGHT
-------------
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 801. Company May Consolidate, Etc., Only on
Certain Terms................................... 55
Section 802. Successor Substituted............................. 55
ARTICLE NINE
------------
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent
of Holders...................................... 56
Section 902. Supplemental Indentures With Consent
of Holders...................................... 57
Section 903. Execution of Supplemental Indentures.............. 58
Section 904. Effect of Supplemental Indentures................. 59
Section 905. Revocation and Effect of Consents................. 59
Section 906. Conformity with Trust Indenture Act............... 59
Section 907. Reference in Securities to
Supplemental Indentures......................... 59
Section 908. Waiver of Compliance by Holders................... 59
Section 909. Subordination Unimpaired.......................... 60
ARTICLE TEN
-----------
COVENANTS
Section 1001. Payment of Principal, Premium and
Interest........................................ 60
Section 1002. Maintenance of Office or Agency................... 60
Section 1003. Money for Securities Payments to Be
Held in Trust................................... 61
Section 1004. Statement by Officers as to Default............... 62
Section 1005. Limitations on Liens on Common Stock of
Principal Subsidiaries.......................... 62
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
ARTICLE ELEVEN
--------------
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.......................... 63
Section 1102. Election to Redeem; Notice to Trustee............. 63
Section 1103. Selection by Trustee of Securities to
Be Redeemed..................................... 63
Section 1104. Notice of Redemption.............................. 64
Section 1105. Deposit of Redemption Price....................... 65
Section 1106. Securities Payable on Redemption Date............. 65
Section 1107. Securities Redeemed in Part....................... 66
ARTICLE TWELVE
--------------
CONVERSION OF SECURITIES
Section 1201. Applicability of Article.......................... 66
Section 1202. Exercise of Conversion Privilege.................. 66
Section 1203. No Fractional Shares.............................. 67
Section 1204. Adjustment of Conversion Price.................... 68
Section 1205. Notice of Certain Corporate
Actions......................................... 68
Section 1206. Reservation of Shares of Common
Stock........................................... 69
Section 1207. Payment of Certain Taxes Upon
Conversion...................................... 69
Section 1208. Nonassessability.................................. 70
Section 1209. Effect of Consolidation or Merger
on Conversion Privilege......................... 70
Section 1210. Duties of Trustee Regarding
Conversion...................................... 71
Section 1211. Repayment of Certain Funds Upon
Conversion...................................... 71
ARTICLE THIRTEEN
----------------
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect
Defeasance or Covenant Defeasance............... 72
Section 1302. Defeasance and Discharge.......................... 72
Section 1303. Covenant Defeasance............................... 72
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 1304. Conditions to Defeasance or
Covenant Defeasance............................. 73
Section 1305. Deposited Money and U.S. Government
Obligations to be Held In Trust;
Other Miscellaneous Provisions.................. 75
Section 1306. Reinstatement..................................... 75
ARTICLE FOURTEEN
----------------
SINKING FUNDS
Section 1401. Applicability of Article.......................... 76
Section 1402. Satisfaction of Sinking Fund Payments
with Securities................................. 76
Section 1403. Redemption of Securities for Sinking
Fund............................................ 76
ARTICLE FIFTEEN
---------------
SUBORDINATION OF SECURITIES
Section 1501. Securities Subordinate to Senior
Debt............................................ 77
Section 1502. Payment Over of Proceeds Upon
Dissolution, Etc................................ 77
Section 1503. Prior Payment to Senior Debt Upon
Acceleration of Securities...................... 79
Section 1504. No Payment When Senior Debt in
Default......................................... 79
Section 1505. Payment Permitted If No Default................... 80
Section 1506. Subrogation to Rights of Holders
of Senior Debt.................................. 80
Section 1507. Provisions Solely to Define Relative
Rights.......................................... 81
Section 1508. Trustee to Effectuate Subordination............... 81
Section 1509. No Waiver of Subordination Provisions............. 81
Section 1510. Notice to Trustee................................. 82
Section 1511 Reliance on Judicial Order or
Certificate of Liquidating Agent................ 83
Section 1512. Trustee Not Fiduciary For Holders
of Senior Debt.................................. 83
Section 1513. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's
Rights.......................................... 83
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 1514. Article Applicable to Paying Agents............... 83
Section 1515. Defeasance of This Article Fifteen................ 84
Section 1516. Certain Conversions Deemed Payment................ 84
TESTIMONIUM..................................................... 84
SIGNATURES AND SEALS............................................ 85
ACKNOWLEDGMENTS................................................. 86
------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
INDENTURE, dated as of , 1994, between ORION CAPITAL
-----
CORPORATION, a Delaware corporation (herein called the "Company"), having
its principal office at 30 Rockefeller Plaza, New York, New York 10112, and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association duly organized and existing under the laws of
the United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "Securities"),
to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or the Securities Act of 1933, as amended, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(4) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision unless the context
otherwise requires.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either (i) the board of directors of
the Company, the executive committee of such board of directors or any other
duly authorized committee of directors and/or officers appointed by such
board of directors or executive committee, or (ii) one or more duly
authorized officers of the Company to whom the board of directors of the
Company or a committee thereof has delegated the authority to act with
respect to the matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified by
the Corporate Secretary or an Assistant Corporate Secretary of the Company
to have been duly adopted by the Board of Directors or a committee thereof
and to be in full force and effect on the date of such certification or (ii)
a certificate signed by the authorized officer or officers of the Company to
whom the board of directors of the Company or a committee thereof has
delegated its authority (as described in the definition of Board of
Directors), and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means, with respect to the Company, its common
capital stock, par value $1.00 per share, and with respect to any Principal
Subsidiary, stock of any class, however designated, except stock which is
non-participating beyond fixed dividend and liquidation preferences and the
holders of which have either no voting rights or limited voting rights
entitling them, only in the case of certain contingencies, to elect less
than a majority of the directors (or persons performing similar functions)
of such Principal Subsidiary, and shall include securities of any class,
however designated, which are convertible into such Common Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by (i) any two of the following
individuals: the Chairman, a Vice Chairman, the President or a Vice
President, or (ii) by one of the foregoing individuals and by any other Vice
President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary or any other individual authorized by the Board of Directors for
such purpose, and delivered to the Trustee.
"Consolidated Tangible Net Worth" means, at any date, the total
assets appearing on the most recently prepared consolidated balance sheet of
the Company and its Subsidiaries at the end of a fiscal quarter of the
Company, prepared in accordance with generally accepted accounting
principles consistently applied (subject to normal year end adjustments and
except to the extent an inconsistency results from compliance by the Company
with new financial accounting standards with which the Company's independent
public accountants concur), less (a) the total liabilities appearing on such
balance sheet and (b) intangible assets. For purposes hereof, "intangible
assets" means the value (net of any applicable reserves), as shown on or
reflected in such balance sheet, of (i) all trade names, trademarks,
licenses, patents, copyrights and goodwill; (ii) organizational and
development costs; and (iii) unamortized debt discount and expense, less
unamortized premium; but (iv) excludes deferred policy acquisition costs and
deferred income tax assets.
"Corporate Trust Office" means the principal office of the Trustee
located at 750 Main Street, Suite 1114, Hartford, Connecticut 06103, at
which at any particular time its corporate trust business shall be
administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" means (without duplication and without regard to any
portion of principal amount that has not accrued and to any interest
component thereof (whether accrued or imputed) that is not due and payable)
with respect to any Person, whether recourse is to all or a portion of the
assets of such Person and whether or not contingent, (i) every obligation of
such Person for money borrowed, (ii) every obligation of such Person
evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of
property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of
such Person issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business), (v) every capital lease
obligation of such Person, (vi) the maximum fixed redemption or repurchase
price of redeemable stock of such Person at the time of determination, and
(vii) every obligation of the type referred to in clauses (i) through (vi)
of another Person and all dividends of another Person the payment of which,
in either case, such Person has guaranteed or is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act
as Depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an indenture
supplemental hereto, providing for the determination, whether pursuant to
objective factors or pursuant to the sole discretion of any Person
(including the Company), and periodic adjustment of the interest rate borne
by a Floating or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security which
provides for interest thereon at a periodic rate that may vary from time to
time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Global Security" means a Security that evidences all or part of
the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section
301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 501(4).
"Officers' Certificate" means a certificate signed by (i) any two
of the following individuals: the Chairman, a Vice Chairman, the President
or a Vice President, or (ii) by one of the foregoing individuals and by any
other Vice President, the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company, or any other individual authorized by the Board
of Directors for such purpose, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1004
shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel to the Company, or who may be other counsel
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
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 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
--------
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (A)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, and (B)
Securities owned by (i) the Company or any other obligor upon the Securities
or (ii) any Subsidiary of the Company or of such other obligor upon the
Securities shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be 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 Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Principal Subsidiary" means any Subsidiary of the Company which
at the time of determination has, (A) assets which, as of the date of the
Company's most recently prepared quarterly consolidated balance sheet,
constituted at least 15% of the Company's total assets on a consolidated
basis as of such date, or (B) revenues for the 12-month period ending on the
date of the Company's most recently prepared quarterly consolidated
statement of income which constituted at least 15% of the Company's total
revenues on a consolidated basis for such period or (C) net earnings for the
12-month period ending on the date of the Company's most recently prepared
quarterly consolidated statement of income which constituted at least 15% of
the Company's total net earnings on a consolidated basis for such period.
"Proceeding" has the meaning specified in Section 1502.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any, (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent that such claim for post-petition interest is allowed in such
proceeding) on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior in right of payment to the
securities or to other Debt which is pari passu with, or subordinated to the
---- -----
Securities; provided, however, that Senior Debt shall not be deemed to
-------- -------
include (1) the Securities or (2) the Debt referred to in clause (vi) of the
definition of Debt.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the voting power
of which is controlled, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting power" means the
power to vote for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
As of the date hereof, Guaranty National Corporation ("GNC") is
not a Subsidiary and shall not be deemed a "Subsidiary" hereunder at any
time unless at the end of the most recent fiscal quarter of the Company more
than 50% of the voting power of GNC is directly or indirectly controlled by
the Company and/or one or more of its Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act of
-------- --------
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended, and except as provided in Section 906.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 1004) shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions con-
tained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which its certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or repre-
sentations with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company
or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate, opinion or representation by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know,
that the certificate, opinion or representation with respect to such
accounting matters upon which its certificate, statement or opinion may be
based is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution
thereof. Where such execution is by a signer acting in a capacity other
than such signer's individual capacity, such certificate or affidavit shall
also constitute sufficient proof of such signer's authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Outstanding Securities of such series. If not set by
the Company prior to the first solicitation of a Holder of Securities of
such series made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard
to any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of such series on such
date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder
to give or take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of
such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office;
provided, however, that the same shall be made, given, furnished or
filed only when received by a Responsible Officer of the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its prin-
cipal office specified in the first paragraph of this instrument;
provided, however, that the same shall be made, given, furnished or
filed only when received by the Company, Attention: Treasurer, or at
any other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at its address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice; provided,
however, that the Company or the Trustee, upon a good faith determination
that mailing is in the circumstances impractical, may give such notice by
any other method which, in the reasonable belief of the Company or, in the
case of the Trustee, of the Company and the Trustee, is likely to be
received by the Holders. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the required provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last day on which a Holder has the
right to convert a Security at a particular conversion price shall not be a
Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of
the Securities of any series which specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal (and
premium, if any) or conversion need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided that no
--------
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc.
------------------------------------
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Security, or for any claim
based thereon, or otherwise in respect of any Security, or based on or in
respect of this Indenture or any indenture supplemental hereto, against any
incorporator, or against any past, present or future stockholder, director
or officer, as such, of the Company or of any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being
expressly waived and released as a condition of, and as consideration for,
the execution of this Indenture and the issue of the Securities.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form
of Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by the Corporate Secretary or an Assistant Corporate Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
The definitive Securities 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, as evidenced by
their execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
----------------------------------------------------------------
regulations thereunder.]
------------------------
ORION CAPITAL CORPORATION
-------------------------------------------
No. $
------ ------
ORION CAPITAL CORPORATION, a Delaware corporation (herein called
the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises
to pay to , or
----------------------------------------------------
registered assigns, the principal sum of
---------------------------------
[Dollars] [if the Security is to bear interest prior to Maturity, insert --
-------------------------------------------------------------
and to pay interest thereon from or from the most recent
--------------
Interest Payment Date to which interest has been paid or duly provided for,
[semi-annually on and in each year] [If
--------------- -------------- --
other than semi-annual payments, insert frequency of payments and payment
-------------------------------
dates], commencing , at [If the Security is to bear interest
-------------- -----------------------------------
at a fixed rate, insert -- the rate of % per annum, [If the Security is
--------------- ------ ---- ------------------
a Floating or Adjustable Rate Security, insert -- a rate per annum
-------------------------------------- ------
[computed-determined] in accordance with the [insert defined name of
Floating or Adjustable Rate Provision] set forth below] [If the Security is
------------------
to bear interest at a rate determined with reference to an index, refer to
----------------------------------------------------------------
description of index below] until the principal hereof is paid or made
available for payment [if applicable, insert -- and (to the extent that the
---------------------
payment of such interest shall be legally enforceable) at the rate of %
-----
per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the or
--------------
(whether or not a Business Day), as the case may be, next
--------------
preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture).
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Debt, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided and (c) appoints the Trustee his attorney-in--
fact for any and all such purposes.
[If the Securities are Floating or Adjustable Rate Securities with
-------------------------------------------
respect to which the principal of or any premium or interest may be
-------------------------------------------------------------------
determined with reference to an index, insert the text of the Floating or
-------------------------------------
Adjustable Rate Provision.]
[If the Security is not to bear interest prior to Maturity, insert
-----------------------------------------------------------------
-- The principal of this Security shall not bear interest except in the case
of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the
------
payment of such interest shall be legally enforceable), which shall accrue
from the date of such default in payment to the date payment of such
principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of
% per annum
-----
(to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to
the date payment of such interest has been made or duly provided for, and
such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
--
applicable, insert -- any such] interest on this Security will be made at
------------------
the office or agency of the Company maintained for that purpose in
, in such coin or currency of the United States of America
--------------
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of
-------- -------
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register).
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
ORION CAPITAL CORPORATION
By
------------------------------
Attest:
------------------------------
Section 203. Form of Reverse Security.
------------------------
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of (herein called
--------------
the "Indenture"), between the Company and , as Trustee
---------------------
(herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof [, limited in aggregate
principal amount to $ ].
--------------
[If applicable, insert -- The Securities of this series are
---------------------
subject to redemption upon not less than 30 days' nor more than 60 days'
notice by mail, [if applicable, insert -- (1) on in any year
--------------------- --------------
commencing with the year and ending with the year through
------- -------
operation of the sinking fund for this series at a Redemption Price equal
to 100% of the principal amount, and (2)] at any time [on or after
19 ], as a whole or in part, at the election of the Company,
-------------- --
at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before , % and if
-------------- ----
redeemed] during the 12-month period beginning of the years
--------------
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to of the principal
------------
amount, together in the case of any such redemption [if applicable, insert
---------------------
-- (whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose
stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
---------------------
subject to redemption upon not less than 30 days' nor more than 60 days'
notice by mail, (1) on in any year commencing with the year
---------
and ending with the year through operation of the
---------- ----------
sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [on or
after ], as a whole or in part, at the election of the Company,
----------
at the Redemption Prices for redemption otherwise than through operation of
the sinking fund (expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
----------
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to % of the principal
-----
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity in on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the
---------- ------
year of [not less than $ ("mandatory sinking fund") and not
------ ----------
more than] $ aggregate principal amount of Securities of this
----------
series. Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to
be made [in the inverse order in which they become due).]
[If the Security is subject to redemption, insert -- In the event
----------------------------------------
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time of
(1) the entire indebtedness of this Security or (2) certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth in the Indenture.
[If the Security is convertible into Common Stock of the Company,
----------------------------------------------------------------
insert -- Subject to the provisions of the Indenture, the Holder of this
------
Security is entitled, at its option, at any time on or before [insert date]
-----------
(except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or
portion hereof, as the case may be, so called for redemption at the close of
business on the date fixed for redemption as provided in the Indenture
unless the Company defaults in making the payment due upon redemption), to
convert the principal amount of this Security (or any portion hereof which
is $1,000 or an integral multiple thereof), into fully paid and
non-assessable shares (calculated as to each conversion to the nearest 1/
100th of a share) of the Common Stock of the Company, as said shares shall
be constituted at the date of conversion, at the conversion price of
$ principal amount of Securities for each share of Common Stock, or
--------
at the adjusted conversion price in effect at the date of conversion
determined as provided in the Indenture, upon surrender of this Security,
together with the conversion notice hereon duly executed, to the Company at
the designated office or agency of the Company in ,
----------------------
accompanied (if so required by the Company) by instruments of transfer, in
form satisfactory to the Company and to the Trustee, duly executed by the
Holder or by its duly authorized attorney in writing. Such surrendering
shall, if made during any period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the Interest
Payment Date next following such Regular Record Date (unless this Security
or the portion being converted shall have been called for redemption on a
Redemption Date during such period), also be accompanied by payment in funds
acceptable to the Company of an amount equal to the Interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment and, in the
case of a conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor Security) of record
at such Regular Record Date to receive an installment of interest (with
certain exceptions provided in the Indenture), no adjustment is to be made
on conversion for interest accrued hereon or for dividends on shares of
Common Stock issued on conversion. The Company is not required to issue
fractional shares upon any such conversion, but shall make adjustment
therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture. The conversion price is subject to
adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the
Company is a party or the sale of substantially all of the assets of the
Company, the Indenture shall be amended, without the consent of any Holders
of Securities, so that this Security, if then outstanding, will be convert-
ible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or sale by a holder of
the number of shares of Common Stock into which this Security might have
been converted immediately prior to such consolidation, merger or sale
(assuming such holder of Common Stock failed to exercise any rights of
election and received per share the kind and amount received per share by a
plurality of non-electing shares) [, assuming if such consolidation, merger
or sale is prior to , 19 , that this Security were convertible at
--------- --
the time of such consolidation, merger or sale at the initial conversion
price specified above as adjusted from to such time pursuant to the
Indenture]. In the event of conversion of this Security in part only, a new
Security or Securities for the unconverted portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other securities or property,
-----------------------------------------------------------------
specify the conversion features and the form of conversion notice pursuant
--------------------------------------------------------------------------
to Section 206 hereof.]
---------------------
[If the Security is not an Original Issue Discount Security,
-----------------------------------------------------------
insert -- If an Event of Default with respect to 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 and with the effect
provided in the Indenture.]
[If the Security is an Original Issue-Discount Security, insert --
--------------------------------------------------------------
If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided
in the Indenture. Such amount shall be equal to -- Insert formula for
------------------
determining the amount. Upon payment (i) of the amount of principal so
----------------------
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]
The Indenture permits the amendment thereof and the modification
of the rights and obligations of the Company and the rights of the Holders
of the Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time outstanding of
each series to be affected, with certain exceptions as therein provided with
respect to certain modifications or amendments which may not be made without
the consent of each Holder of such Security affected thereby. The Indenture
also permits certain amendments and modifications thereto from time to time
by the Company and the Trustee without the consent of the Holders of any
series of the Securities to be affected thereby for certain specified
purposes, including curing ambiguities, defects or inconsistencies and
making any such change that does not adversely affect the rights of any
Holder of such series of the Securities, as provided therein.
The Indenture contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of
transfer hereof or in exchange 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
any premium and Interest on this Security at the times, place and [rate(s)],
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 registerable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
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 certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of
a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
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 is overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of (and
premium, if any) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
------------------------------------
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form or such other legends as
may be required:
This Security is a Global Security within the meaning of
the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee thereof. This
Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof
and no such transfer may be registered, except in the
limited circumstances described in the Indenture. Every
Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, this
Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------------
As Trustee
By
-------------------------------
Authorized Officer
Section 206. Form of Conversion Notice.
-------------------------
To Orion Capital Corporation
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of
Common Stock of the Company in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof
unless a different name has been indicated below. If this Notice is being
delivered on a date after the close of business on a Regular Record Date and
prior to the opening of business on the related Interest Payment Date
(unless this Security or the portion thereof being converted has been called
for redemption on a Redemption Date within such period), this Notice is
accompanied by payment, in funds acceptable to the Company, of an amount
equal to the interest payable on such Interest Payment Date of the principal
of this Security to be converted. If shares are to be issued in the name of
a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect hereto. Any amount required to be paid by the
undersigned on account of interest accompanies this security.
Principal Amount to be Converted
(in an integral multiple of
$1,000, if less than all):
$
-----------
Dated
----------------
---------------------------------
Signature
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a national
stock exchange if shares of Common
Stock are to be delivered, or
Securities to be issued, other than
to and in the name of the regis-
tered owner.
---------------------------------
Signature Guarantee
Fill in for registration of shares of Common Stock and Security if
to be issued otherwise than to the registered holder.
Social Security or other Taxpayer
----------------------------
(Name) Identifying Number
----------------------------
----------------------------
(Address)
----------------------------
Please print Name and Address
(including zip code number)
ARTICLE THREE
The Securities
Section 301. 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. There shall
be established in or pursuant to a Board Resolution or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of
any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which 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 Sections 304, 305, 306, 907 or
1107 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(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, or the Floating or Adjustable Rate Provision
pursuant to which such rates shall be determined, the date or dates
from which such interest shall accrue, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date
for any interest payable on any Interest Payment Date;
(6) whether the Securities of the series would be secured
pursuant to Section 901(6);
(7) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at
which (including premium, if any) and the terms and conditions upon
which Securities of the series shall be redeemed, in whole or in part,
at the option of the Company pursuant to a sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) the terms of any right to convert Securities of the series
into shares of Common Stock of the Company or other securities or
property;
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(12) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with
reference to one or more indices, the manner in which such amounts
shall be determined;
(13) 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 pursuant to
Section 502 or provable under any applicable federal or state
bankruptcy or similar law pursuant to Section 503;
(14) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstance other than
those set forth in Section 305 in which any such Global Security may be
transferred to, and registered and exchanged for Securities registered
in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be
registered;
(15) any other event or events of default applicable with respect
to the Securities of the series in addition to those provided in
Section 501(1) through (7);
(16) any other covenant or warranty included for the benefit of
Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit of
Securities of the series, or any combination of such covenants,
warranties or provisions;
(17) any restriction or condition on the transferability of the
Securities of the series;
(18) any authenticating or paying agents, registrars, conversion
agents or any other agents with respect to the Securities of the
series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of such action shall be delivered to
the Trustee.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The securities shall be executed on behalf of the Company by its
Chairman, a Vice Chairman, its President, any Vice President, its Treasurer
or Assistant Treasurer, its Controller or Assistant Controller under its
corporate seal reproduced thereon attested by its Corporate Secretary or one
of its Assistant Corporate Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
Minor typographical and other minor errors in the text of any Security or
minor defects in the seal or facsimile signature on any Security shall not
affect the validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions or
indentures supplemental hereto as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights gener-
ally and to general equity principles.
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 or if the
Trustee in good faith by its board of directors, executive committee, or a
trust committee of directors or committee of Responsible Officers of the
Trustee shall determine that such action would expose the Trustee to
personal liability to existing Holders of Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Board Resolution
otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Secu-
rities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of
any authorized denominations and of a like aggregate principal amount and
tenor. Until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it or the Trustee may prescribe,
the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 907 or
1107 not involving any transfer.
Neither the Company nor the Trustee shall be required (i) to
issue, register the transfer of or exchange Securities of any series during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day
of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such
Global Security or any nominee thereof, and no such transfer may be
registered, unless (1) such Depositary (A) notifies the Company and the
Trustee that it is unwilling or unable to continue as Depositary for such
Global Security or (B) ceases to be a clearing agency registered under the
Exchange Act, (2) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect to the Securi-
ties evidenced by such Global Security or (4) there shall exist such other
circumstances, if any, as have been specified for this purpose as
contemplated by Section 301. Notwithstanding any other provision in this
Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only to,
and may be registered and exchanged for Securities registered only in the
name or names of, such Person or Persons as the Depositary for such Global
Security shall have directed and no transfer thereof other than such a
transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security to which
the restriction set forth in the first sentence of the preceding paragraph
shall apply, whether pursuant to this Section, Section 304, 306, 907 or 1107
or otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If there shall be delivered to the Company and the Trustee (i) a
mutilated Security, or (ii) evidence to their satisfaction of the
destruction, loss or theft of any Security and in either case such security
or indemnity as may be required by either of them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such mutilated, destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company or the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 15 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at its address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Subject to the provisions of Section 1202, in the case of any
Security which is converted after any Regular Record Date and on or prior to
the next succeeding Interest Payment Date (other than any Security the
principal of (or premium, if any, on) which shall become due and payable,
whether at a Stated Maturity or by declaration of acceleration, call for
redemption, or otherwise, prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on
such Interest Payment Date notwithstanding such conversion and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or any one or more Predecessor
Securities) is registered at the close of business on such Regular Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest whose
Stated Maturity is after the date of conversion of such Security shall not
be payable.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a 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 such Security is registered as
the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment or
for conversion shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancella-
tion any Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of as directed by a Company Order.
Acquisition by the Company of any Security shall not operate as a redemption
or satisfaction of the indebtedness represented by such Security unless and
until the same is delivered to the Trustee for cancellation.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, registration of
transfer or exchange of Securities of a series herein expressly provided
for) with respect to Securities of any series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to a series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306
and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee in trust irrevocably (A)
money (in United States dollars) in an amount, or (B) U.S. Government
Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient to pay and
discharge the entire indebtedness on such Securities of such series not
theretofore delivered to the Trustee for cancellation, for principal of
(and premium, if any) and interest to the date of such deposit (in the
case of Securities of such series which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
In the event there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an
instrument acknowledging satisfaction and discharge of this Indenture only
if requested to do so with respect to Securities of a particular series as
to which it is Trustee and if the other conditions thereto are met. In the
event that there are two or more Trustees hereunder, then the effectiveness
of any such instrument shall be conditioned upon receipt of such instruments
from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to a particular series, the obligations of the Company to the
Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive until there are no Securities
Outstanding with respect to a particular series and the obligations of the
Company and the Trustee with respect to all other series of Securities shall
survive.
Section 402. Application of Trust Fund.
-------------------------
Subject to provisions of the last paragraph of Section 1003, all
amounts deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such funds have been deposited with
the Trustee. Money deposited pursuant to this section not in violation of
this Indenture shall not be subject to claims of the holders of Senior Debt
under Article Fifteen.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default" whenever used with respect to Securities of a
series means any one of the following events and such other events as may be
established with respect to the Securities of such series as contemplated by
Section 301 hereof (whether or not it shall be occasioned by the provisions
of Article Fifteen):
(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
(2) Default in the payment 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 redemption, by
declaration of acceleration or otherwise; or
(3) Default in the making of any sinking fund payment, whether
mandatory or optional, 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 Company duly to observe or perform
in any material respect any other of the covenants or agreements on the
part of the Company contained in this Indenture (other than those set
forth exclusively in the terms of any other particular series of
Securities established as contemplated by this Indenture for the
benefit of such other series) and written notice of such failure,
stating that such notice is a "Notice of Default" hereunder, and
requiring the Company to remedy the same, shall have been given by
registered or certified mail, return receipt requested, to the Company
by the Trustee, or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Outstanding Securities
of that series, and such failure shall have continued unremedied for a
period of 90 days after the date of the Company's receipt of such
Notice of Default; or
(5) (i) An event of default, as defined in any indenture or
instrument evidencing or under which the Company or any Principal
Subsidiary shall have outstanding indebtedness for borrowed money in a
principal amount in excess of $40,000,000, shall happen and be
continuing and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which
the same would otherwise have become due and payable or (ii) the
Company or any Principal Subsidiary shall default in the payment at
final maturity of outstanding indebtedness for borrowed money in a
principal amount in excess of $40,000,000, and such acceleration or
default at maturity shall not be waived, rescinded or annulled within
30 days after written notice thereof, stating that such notice is a
"Notice of Default" hereunder, sha11 have been given to the Company by
the Trustee (if such event be known to it), or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series; provided, however, that if
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such acceleration under such indenture or instrument or default at
maturity shall be remedied or cured by the Company or Principal Sub-
sidiary, or waived, rescinded or annulled by the requisite holders of
such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or
any of the Holders; and provided further, that, subject to the
-------- -------
provisions of Sections 601 and 602, the Trustee shall not be charged
with knowledge of any such default unless written notice thereof shall
have been given to the Trustee by the Company, by the holder of any
such indebtedness or an agent of the holder of any such indebtedness,
by the trustee then acting under any such indenture or other instrument
under which such default shall have occurred, or by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities
of that series; or
(6) A decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of the Company
under any applicable Federal or State bankruptcy or similar law, and
such decree or order shall have continued undischarged and unstayed for
a period of 90 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or of all or substantially all
of its property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or
(7) The Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment or composition under
any applicable Federal or State bankruptcy or similar law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver, liquidator, trustee, assignee, sequestrator
or similar official in bankruptcy or insolvency of the Company or of
all or substantially all of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due and its willingness to be
adjudged a bankrupt, or corporate action shall be taken by the Company
in furtherance of any of the aforesaid purposes.
Upon receipt by the Trustee of any Notice of Default pursuant to
this Section 501 with respect to Securities of any series, a record date
shall automatically and without any other action by any Person be set for
the purpose of determining the holders of Outstanding Securities of such
series entitled to join in such Notice of Default, which record date shall
be the close of business on the day the Trustee receives such Notice of
Default. The Holders of Outstanding Securities of such series on such
record date (or their duly appointed agents), and only such Persons, shall
be entitled to join in such Notice of Default, whether or not such Holders
remain Holders after such record date; provided that, unless such Notice of
--------
Default shall have become effective by virtue of Holders of at least 25% in
principal amount of Outstanding Securities of such series on such record
date (or their duly appointed agents) having joined therein on or prior to
the 90th day after such record date, such Notice of Default shall
automatically and without any action by any Person be cancelled and of no
further effect.
The Company shall deliver to the Trustee written notice of any
Event of Default under clauses (5), (6) and (7) hereof within 30 days of
knowledge thereof by the Company.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may
be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter
in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences
if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel except such costs and ex-
penses as are a result of negligence or bad faith on the part of
the Trustee;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and interest, if
any, on the Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or
any rescission and annulment of any such declaration, pursuant to this
Section 502 with respect to Securities of any series, a record date shall
automatically and without any other action by any Person be set for the
purpose of determining the Holders of Outstanding Securities of such series
entitled to join in such declaration, or rescission and annulment, as the
case may be, which record date shall be the close of business on the day the
Trustee receives such declaration, or rescission and annulment, as the case
may be. The Holders of Outstanding Securities of such series on such record
date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such declaration, or rescission and annulment, as the
case may be, whether or not such Holders remain Holders after such record
date; provided that, unless such declaration, or rescission and annulment,
--------
as the case may be, shall have become effective by virtue of Holders of at
least 25%, in the case of any declaration of acceleration, or a majority, in
the case of any rescission or annulment, in principal amount of Outstanding
Securities of such series on such record date (or their duly appointed
agents) having joined therein on or prior to the 90th day after such record
date, such declaration, or rescission and annulment, as the case may be,
shall automatically and without any action by any Person be cancelled and of
no further effect.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
-------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
except such costs and expenses, as are a result of negligence or bad faith
on the part of the Trustee. Until such demand is made by the Trustee, the
Company may pay the principal of and premium, if any, and interest, if any,
on the Securities of any series to the registered holders, whether or not
the Securities of such series are overdue.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed
in any such proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 607 except such costs and expenses, as are a
result of negligence or bad faith on the part of the Trustee.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the
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Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel except such costs and expenses, as are a
result of negligence or bad faith on the part of the Trustee, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Subject to Article Fifteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable an such Securities for principal and any
premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory in form and substance to the Trustee against
the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert.
----------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which in absolute and unconditional,
to receive payment of the principal of and any premium and (subject to
Section 307) any interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to convert such Securities in accordance with Article
Twelve and to institute suit for the enforcement of any such payment or such
right of conversion, and such rights shall not be impaired without the
consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Subject to Section 507,
every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with respect to
the Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of any series, a record date shall be set for determining the
Holders of Outstanding Securities of such series entitled to join in such
direction, which record date shall be the close of business on the day the
Trustee receives such direction. The Holders of Outstanding Securities of
such series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to join in such direction, whether or not
such Holders remain Holders after such record date; provided that, unless
--------
such direction shall have become effective by virtue of Holders of at least
a majority in principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents) having joined therein on
or prior to the 90th day after such record date, such direction shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder (or a duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a direction contrary to or different from, or, after the
expiration of such period, identical to, a direction that has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to this paragraph.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such
suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act.
(a) If an Event of Default with respect to securities of any
Series at the time Outstanding has occurred and is continuing, the
Trustee shall exercise 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, in the absence of bad faith on its part, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. The Trustee, however,
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture but need
not verify the accuracy of the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 512.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money
held in trust by the Trustee need not be segregated from other funds,
except to the extent required by law.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default or Event of Default occurs and is continuing
hereunder with respect to Securities of any series, and if such default or
Event of Default is known to a Responsible Officer or the Trustee, the
Trustee shall mail the Holders of Securities of such series notice of such
default within 90 days after it occurs; provided, however, that in the case
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of any default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. Except in the case of a default
in payment on any Security of any series, the Trustee may withhold notice if
and so long as a trust committee of Responsible Officers of the Trustee in
good faith determines that withholding the notice is in the interest of
Holders of securities of such series. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such Counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory in form and substance to the Trustee against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall upon reasonable notice to the
Company be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at a time and place
acceptable to the Company;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its written request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation, and reasonable expenses and disbursements of
its agents and outside counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts and the performance
of its duties hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property
of the Company held or collected by the Trustee in its capacity as Trustee
or as Paying Agent hereunder (but not in any other capacity), except that
held in trust to pay principal of (and premium, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(6) or (7) occurs with respect to
any series of Securities, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Federal or
State bankruptcy law or similar law.
The Company's obligations under this Section 607 and any lien
arising hereunder shall survive the resignation or removal of the Trustee,
the discharge of the Company's obligations pursuant to Article Four or
Article Thirteen hereof and the termination of this Indenture.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000 or is a
subsidiary of a corporation which shall be a Person that has a combined
capital and surplus of at least $50,000,000 and which unconditionally
guarantees the obligations of the Trustee hereunder. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or be incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any Series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supple-
mental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or
desirable to transfer the rights, powers, trust and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustee co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may with the consent of the Company appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer, partial conversion or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the pur-
poses of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee or the
Company may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company or the Trustee, as the case may be. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------
As Trustee
By
--------------------------
As Authenticating Agent
By
--------------------------
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 10 days after each Regular
Record Date in each year, a list for each series of Securities, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Securities of such series as of the preceding Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
---------
its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. To the extent that any such report is required by the Trust
Indenture Act with respect to any 12 month period, such report shall cover
the 12 month period ending July 15 and shall be transmitted by the next
succeeding September 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
--------
such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
Person or sell its properties and assets as, or substantially as, an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or sell its properties and assets as, or substantially
as, an entirety to any Person, the Person formed by such consolidation
or into which the Company is merged or the Person which purchases the
properties and assets of the Company as, or substantially as, an
entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed and the conversion rights, if any, shall be provided for in
accordance with Article Twelve, by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee, by the
Person (if other than the Company) formed by such consolidation or into
which the Company shall have been merged or by the corporation which
shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no Event
of Default shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, or sale and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale of the properties and assets of
the Company as, or substantially as, an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and
the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, including,
without limitation, with respect to any of the provisions set forth in
Article Fifteen, provided that any such addition, change or elimination
--------
(i) shall neither (A) apply to any Security of any series created prior
to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of
any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of
Section 1005, or to otherwise secure the Securities of any series; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the 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 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause
--------
shall not adversely affect the interests of the Holders of Securities
of any series in any material respect; or
(10) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article Twelve, including
providing for the conversion of the securities into any security (other
than the Common Stock of the Company) or property of the Company; or
(11) to conform to any mandatory provisions of law.
Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority of
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
-------- -------
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (including any
change in the Floating or Adjustable Rate Provision pursuant to which
such rate is determined that would reduce such rate for any period) or
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment where,
or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities of any series in a manner adverse to
the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) if applicable, make any change that adversely affects the
right to convert any security to which the provisions of Article Twelve
are applicable or, except as provided in this Indenture, decrease the
conversion rate or increase the conversion price of any such security,
or
(4) modify any of the provisions of this Section, Section 513 or
Section 908, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
-------- -------
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 908, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and,
with respect to supplemental indentures under Section 902 hereof, evidence
of the consents of Holders required in connection therewith. The Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Revocation and Effect of Consents.
---------------------------------
Until an amendment or supplement under this Article or a waiver
under this Article becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver
becomes effective.
After an amendment or supplement becomes effective, it shall bind
every Holder.
Section 906. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 907. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 908. Waiver of Compliance by Holders.
-------------------------------
Anything in this Indenture to the contrary notwithstanding, any of
the acts which the Company is required to do, or is prohibited from doing,
by any of the provisions of this Indenture may, to the extent that such
provisions might be changed or eliminated by a supplemental indenture
pursuant to Section 902 upon consent of Holders of not less than a majority
in aggregate principal amount of the then Outstanding Securities of the
series affected, be omitted or done by the Company, if there is obtained the
prior consent or waiver of the Holders of at least a majority in aggregate
principal amount of the then Outstanding Securities of such series.
Section 909. Subordination Unimpaired.
------------------------
No provision in any supplemental indenture that affects the
superior position of the holders of Senior Debt shall be effective against
holders of Senior Debt.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series
in accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
So long as any Securities are Outstanding, the Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer or exchange, where Securities of that series may be surrendered
for conversion and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presen-
tations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
-------- -------
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (i) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (ii) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust
by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
-------- -------
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the request and expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, the City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a
certificate signed by the Company's principal executive officer, principal
financial officer or principal accounting officer stating to the best
knowledge of the signer thereof whether or not the Company has complied
during such immediately preceding fiscal year with and is in compliance with
all terms, conditions and covenants of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and if the
signer has obtained knowledge of any continuing default by the Company in
the performance, observation or fulfillment of any such term, condition or
covenant, specifying each such default and the nature thereof.
Section 1005. Limitations on Liens on Common Stock of Principal
Subsidiaries.
-------------------------------------------------
So long as any of the Securities remains Outstanding, the Company
will not, and will not permit any Principal Subsidiary to, issue, assume,
incur or guarantee any indebtedness for borrowed money secured by a
mortgage, pledge, lien or other encumbrance in the nature of a lien ("Lien")
on any of the Common Stock of a Principal Subsidiary, which Common Stock is
owned by the Company or by any Principal Subsidiary, without effectively
providing that the Securities of each series, the 9 1/8% Senior Notes if and
to the extent then required to be secured by the terms of the 9 1/8% Senior
Notes Indenture, and, if the Company so elects, any other indebtedness of
the Company ranking senior to or on a parity with the Securities, shall be
equally and ratably secured with, or prior to, such secured indebtedness for
borrowed money so long as such secured indebtedness shall be so secured,
unless after giving effect thereto, the aggregate amount of all such secured
indebtedness of the Company and its Subsidiaries would not exceed 15% of
Consolidated Tangible Net Worth of the Company and its Subsidiaries as
reflected on the Company's most recently prepared quarterly balance sheet;
provided, however, that this covenant shall not apply to, and there shall be
-------- -------
excluded from secured indebtedness in any computation under this covenant,
indebtedness secured by: (i) Liens existing on the date hereof; (ii) Liens
on any shares of common stock of any corporation existing at the time such
corporation becomes a Principal Subsidiary or merges into or consolidates
with the Company or a Principal Subsidiary; (iii) Liens on shares of common
stock of any Person existing at the time of acquisition thereof by the
Company or any Principal Subsidiary, (iv) Liens to secure the financing of
the acquisition, construction or improvement of property, or the acquisition
of shares of stock, hereafter acquired, constructed or improved by the
Company or any Subsidiary, provided that such Liens are created prior to, at
the time of or within one year after such acquisition or, in the case of
property, completion of construction or commencement of commercial
operation, whichever is later; (v) Liens in favor of the Company or any
Subsidiary; (vi) Liens required by or in favor of governments or agencies
thereof including those to secure progress, advance or other payments
pursuant to any contract or provisions of any statute; or (vii) Liens in the
nature of rights of set-off or bankers' liens pursuant to any contract or
statute; and (viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any Lien
referred to in the foregoing clauses (i) to (vii), inclusive, provided,
--------
further, that (a) such extension, renewal or replacement Lien shall be
-------
limited to all or a part of the same shares of stock that secured the Lien
extended, renewed or replaced and (b) the indebtedness secured by such Lien
at such time is not increased.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed,
the specific provision of the Securities of such series pursuant to which
such Securities being called for redemption are being redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to
be redeemed), the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding
sentence.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) if applicable, the conversion price, and that the date on
which the right to convert the principal of the Securities or the
portions thereof to be redeemed will terminate will be the Redemption
Date and the place or places where such Securities may be surrendered
for conversion,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date, other than any
Securities called for redemption on that date which have been converted
prior to the date of such deposit.
If any Security or portion thereof called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or
so segregated and held in trust for the redemption of such Security or
portion thereof shall (subject to any right of the Holder of such Security
or any Predecessor Security to receive interest as provided in the last
paragraph of Section 307) be paid to the Company upon Company Request or, if
then held by the Company, shall be discharged from such trust.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
-------- -------
that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor
in the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Security or Securities of the
same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Conversion of Securities
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into shares of Common Stock
of the Company, and the issuance of such shares of Common Stock upon the
conversion of such Securities, except as otherwise specified as contemplated
by Section 301 for the Securities of such series.
Section 1202. Exercise of Conversion Privilege.
--------------------------------
In order to exercise a conversion privilege, the Holder of a
Security of a series with such a privilege shall surrender such Security to
the Company at the office or agency maintained for that purpose pursuant to
Section 1002, accompanied by written notice to the Company that the Holder
elects to convert such Security or a specified portion thereof. Such notice
shall also state, if different from the name and address of such Holder, the
name or names (with address) in which the certificate or certificates for
shares of Common Stock which shall be issuable on such conversion shall be
issued. Securities surrendered for conversion shall (if so required by the
Company or the Trustee) be duly endorsed by or accompanied by instruments of
transfer in forms satisfactory to the Company and the Trustee duly executed
by the registered Holder or its attorney duly authorized in writing; and
Securities so surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date (excluding Securities or portions thereof
called for redemption during such period) shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of
such Security then being converted, and such interest shall be payable to
such registered Holder notwithstanding the conversion of such Security,
subject to the provisions of Section 307 relating to the payment of
Defaulted Interest by the Company. As promptly as practicable after the
receipt of such notice and of any payment required pursuant to a Board
Resolution and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such
reasonable regulations as the Company may prescribe, the Company shall issue
and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance
with the provisions of such Board Resolution, Officers' Certificate or
supplemental indenture, and cash as provided therein in respect of any
fractional share of such Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice
and such payment, if required, shall have been received in proper order for
conversion by the Company and such Security shall have been surrendered as
aforesaid (unless such Holder shall have so surrendered such Security and
shall have instructed the Company to effect the conversion on a particular
date following such surrender and such Holder shall be entitled to convert
such Security on such date, in which case such conversion shall be deemed to
be effected immediately prior to the close of business on such date) and at
such time the rights of the Holder of such Security as such Security Holder
shall cease and the person or persons in whose name or names any certificate
or certificates for shares of Common Stock of the Company shall be issuable
upon such conversion shall be deemed to have become the Holder or Holders of
record of the shares represented thereby. Except as set forth above and
subject to the final paragraph of Section 307, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the
Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unconverted
portion of such Security.
Section 1203. No Fractional Shares.
--------------------
No fractional share of Common Stock of the Company shall be issued
upon conversions of Securities of any series. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion shall be
computed on the basis of the aggregate principal amount of the Securities
(or specified portions thereof to the extent permitted hereby) so
surrendered. If, except for the provisions of this Section 1203, any Holder
of a Security or Securities would be entitled to a fractional share of
Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such
Holder an amount in cash equal to the current market value of such
fractional share computed, (i) if such Common Stock is listed or admitted to
unlisted trading privileges on a national securities exchange, on the basis
of the last reported sale price regular way on such exchange on the last
trading day prior to the date of conversion upon which such a sale shall
have been effected, or (ii) if such Common Stock is not at the time so
listed or admitted to unlisted trading privileges on a national securities
exchange, on the basis of the average of the bid and asked prices of such
Common Stock in the over-the-counter market, on the last trading day prior
to the date of conversion, as reported by the National Quotation Bureau,
Incorporated or similar organization if the National Quotation Bureau,
Incorporated is no longer reporting such information, or if not so
available, the fair market price as determined by the Board of Directors.
For purposes of this Section, "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day an which the Common Stock
is not traded on the New York Stock Exchange, or if the Common Stock is not
traded on the New York Stock Exchange, on the principal exchange or market
on which the Common Stock is traded or quoted.
Section 1204. Adjustment of Conversion Price.
------------------------------
The conversion price of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any stock
dividends, stock splits, reclassification, combinations or similar
transactions in accordance with the term of the supplemental indenture or
Board Resolutions setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officers' Certificate setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section
1002 and, if different, with the Trustee. The Company shall forthwith cause
a notice setting forth the adjusted conversion price to be mailed, first
class postage prepaid, to each Holder of Securities of such series at its
address appearing on the Security Register and to any conversion agent other
than the Trustee.
Section 1205. Notice of Certain Corporate Actions.
-----------------------------------
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its retained earnings (other than a dividend for which approval of any
shareholders of the Company is required); or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights (other than any such grant for which approval of any
shareholders of the Company is required); or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock, or of any consolidation, merger or share exchange to
which the Company is a party and for which approval of any shareholders
of the Company is required), or of the sale of all or substantially all
of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause
to be mailed to all Holders at their last addresses as they shall appear in
the Securities Register, at least 20 days (or 10 days in any case specified
in clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights, options or warrants,
or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution,
rights, options or warrants are to be determined, or (ii) the date on which
such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities,
cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or
winding up. If at any time the Trustee shall not be the conversion agent, a
copy of such notice shall also forthwith be filed by the Company with the
Trustee.
Section 1206. Reservation of Shares of Common Stock.
-------------------------------------
The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock, for
the purpose of effecting the conversion of Securities, the full number of
shares of Common stock of the Company then issuable upon the conversion of
all outstanding Securities of any series that has conversion rights.
Section 1207. Payment of Certain Taxes Upon Conversion.
----------------------------------------
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of its Common Stock on conversion
of Securities pursuant hereto. The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved in
the issue and delivery of shares of its Common Stock in a name other than
that of the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of any such tax, or has
established, to the satisfaction of the Company, that such tax has been
paid.
Section 1208. Nonassessability.
----------------
The Company covenants that all shares of its Common Stock which
may be issued upon conversion of Securities will upon issue in accordance
with the terms hereof be duly and validly issued and fully paid and
nonassessable.
Section 1209. Effect of Consolidation or Merger on Conversion Privilege.
---------------------------------------------------------
In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding of any series
that is convertible into Common Stock of the Company shall have the right,
which right shall be the exclusive conversion right thereafter available to
said Holder (until the expiration of the conversion right of such Security),
to convert such Security into the kind and amount of shares of stock or
other securities or property (including cash) receivable upon such
consolidation, merger or sale by a holder of the number of shares of Common
Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture, such Security and
such supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidations, mergers or
sales. It is expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of Common Stock of the
Company do not receive shares of common stock of the surviving corporation
but receive other securities, cash or other property or any combination
thereof, Holders of Securities shall not have the right to thereafter
convert their Securities into common stock of the surviving corporation or
the corporation which shall have acquired such assets, but rather, shall
have the right upon such conversion to receive the other securities, cash or
other property receivable by a holder of the number of shares of Common
Stock of the Company into which the Securities held by such holder might
have been converted immediately prior to such consolidation, merger or sale,
all as more fully provided in the first sentence of this Section 1209.
Anything in this Section 1209 to the contrary notwithstanding, the
provisions of this Section 1209 shall not apply to a merger or consolidation
of another corporation with or into the Company pursuant to which both of
the following conditions are applicable: (i) the Company is the surviving
corporation and (ii) the outstanding shares of Common Stock of the Company
are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant
to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly
be convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate
or opinion of an independent certified public accountant with respect
thereto; and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely thereon, and shall not be responsible or
accountable to any Holder of Securities for any provision in conformity
therewith or approved by such independent certified accountant which may be
contained in said supplemental indenture.
Section 1210. Duties of Trustee Regarding Conversion.
--------------------------------------
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series
that is convertible into Common Stock of the Company to determine whether
any facts exist which may require any adjustment of the conversion price, or
with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock of the Company, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any
Securities and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Subject to the provisions of Section
601, neither the Trustee nor any conversion agent shall be responsible for
any failure of the Company to issue, transfer or deliver any shares of its
Common Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or to comply with
any of the covenants of the Company contained in this Article Twelve or in
the applicable supplemental indenture, resolutions of the Board of Directors
or written instrument executed by one or more duly authorized officers of
the Company.
Section 1211. Repayment of Certain Funds Upon Conversion.
------------------------------------------
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other paying agent for the
purpose of paying the principal of, and premium, if any, and interest, if
any, on any of the Securities (including funds deposited for the sinking
fund referred to in Article Three hereof) and which shall not be required
for such purposes because of the conversion of such Securities as provided
in this Article Twelve shall after such conversion be repaid to the Company
by the Trustee upon the Company's written request by Company Request.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at any time, to have either Section 1302 or
Section 1303 applied to the Outstanding Securities of any series, upon
compliance with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 1301
to have this Section 1302 applied to the Outstanding Securities of any
series, the Company shall be deemed to have been discharged from its
obligations, and the provisions of Article Fifteen shall cease to be
effective, with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as the
Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of Securities of such
series to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the prin-
cipal of and any premium and interest on such Securities of such series when
payments are due, (2) the Company's obligations with respect to the
Securities of such series under Sections 304, 305, 306, 1002 and 1003, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, its rights under Section 607 and (4) this
Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option provided in Section 1301 to have this
Section 1302 applied to the Outstanding Securities of any series
notwithstanding the prior exercise of its option provided in Section 1301 to
have Section 1303 applied to the Outstanding Securities of such series.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 1301
to have this Section 1303 applied to the Outstanding Securities of any
series, (1) the Company shall be released from its obligations under Section
1005 and Section 801 and (2) the occurrence of any event specified in
Sections 501(3), 501(4) (with respect to Section 1005 and Section 801) and
501(5) shall be deemed not to be or result in an Event of Default, and (3)
the provisions of Article Fifteen shall cease to be effective, in each case
with respect to the Outstanding Securities of such series as provided in
this Section on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case
of Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference
in any such Section to any other provision herein or in any other document,
but the remainder of this Indenture and the Securities of such series shall
be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (i) money in an
amount, or (ii) U.S. Government Obligations that through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Securities of such
series. As used herein, "U.S. Government Obligation" means (x) any
security that is (i) a direct obligation of the United States of
America for the payment of which full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality
for the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to
any specific payment of principal of or interest on any such U.S.
Government Obligation specified in Clause (x) and held by such
custodian for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
such U.S. Government Obligation, provided that (except as required by
--------
law) such custodian is not authorized to make any deduction from the
amount payable to the Holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from or, there has been published by, the
Internal Revenue Service, a ruling or (ii) since the date hereof, there
has been a change in the applicable Federal income tax law, in case of
either (i) or (ii) to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of such
deposit and Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holder of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as result of the
deposit and Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of
such deposit.
(5) No Event of Default or event that (after notice or lapse of
time or both) would become an Event of Default shall have occurred and
be continuing at the time of such deposit or, with regard to any Event
of Default or any such event specified in Sections 501(6) and 501(7),
at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
(7) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
(8) At the time of such deposit: (A) no default in the payment of
principal of (or premium, if any) or interest on any Senior Debt shall
have occurred and be continuing or (B) no other event of default with
respect to any Senior Debt shall have occurred and be continuing and
shall have resulted in such Senior Debt becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable, or, in the case of either Clause (A) or Clause (B)
above, each such default or event of default shall have been cured or
waived or shall have ceased to exist.
Section 1305. Deposited Money and U.S. Government Obligations
to be Held In Trust; Other Miscellaneous Provisions.
---------------------------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes
of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1304 in
respect of the Securities of any Defeasible Series shall be held in trust
and applied by the Trustee, in accordance with the provisions of the
Securities of such series and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of
Securities of such series, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the extent required
by law. Money so held in trust shall not be subject to the provisions of
Article Fifteen.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
that by law is for the account of the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as
provided in Section 1304 with respect to Securities of any Defeasible Series
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to
be deposited to effect an equivalent Defeasance or Covenant Defeasance with
respect to the Securities of such series.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Thirteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities of
such series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Thirteen with respect to Securities of
such series until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 1305 with respect to
Securities of such series in accordance with this Article Thirteen;
provided, however, that if the Company makes any payment of principal of or
-------- -------
any premium or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of Securities of such series to receive such payment
from the money so held in trust.
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of 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 Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1211. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
Section 1402. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series which have been converted pursuant to Article
Twelve or Securities of a series which have been acquired or redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities or otherwise, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
--------
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1403. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30 nor more
than 60 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104 and provide a copy thereof to the Company
five (5) days in advance of the mailing thereof. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE FIFTEEN
Subordination of Securities
Section 1501. Securities Subordinate to Senior Debt.
-------------------------------------
The Company covenants and agrees, and each Holder of a Security,
by its acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article (subject to
the provisions of Article Four and Article Thirteen), the payment of the
principal of (and premium, if any) and interest on each and all of the
Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt.
Section 1502. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, arrangement, reorganization,
debt restructuring or other similar case or proceeding in connection with
any insolvency or bankruptcy proceeding, relative to the Company or to its
assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors
or any other marshalling of assets and liabilities of the Company, then and
in any such event specified in (a), (b) or (c) above (each such event, if
any, herein sometimes referred to as a "Proceeding") the holders of Senior
Debt shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Debt, or provision shall
be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Securities are entitled to receive any payment or distribution of any kind
or character, whether in cash, property or securities (including any payment
or distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as
"Junior Subordinated Payment"), on account of principal of (or premium, if
any) or interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end
the holders of Senior Debt shall be entitled to receive, for application to
the payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, which may be payable or deliverable in respect of the Securities in
any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, before all Senior Debt is paid in full or payment
thereof is provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, and if such fact shall, at or
prior to the time of such payment or distribution, have been made known to
the Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the
Company for application to the payment of all Senior Debt remaining unpaid,
to the extent necessary to pay all Senior Debt in full, after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Debt. Any taxes that have been withheld or deducted from any payment or
distribution in respect of the Securities, or any taxes that ought to have
been withheld or deducted from any such payment or distribution that have
been remitted to the relevant taxing authority, shall not be considered to
be an amount that the Trustee or the Holder of any Security receives for
purposes of this Section.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which
securities are subordinated in right of payment to all then outstanding
Senior Debt to substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation
or dissolution of the Company following the sale of all or substantially all
of its properties and assets as an entirety to another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by sale such properties and assets as an entirety, as the case may
be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article Eight.
Section 1503. Prior Payment to Senior Debt Upon Acceleration of Securities.
------------------------------------------------------------
In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of the
Senior Debt outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full of all amounts due on
or in respect of such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, before the Holders of the Securities are
entitled to receive any payment (including any payment which may be payable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) by the Company on account of
the principal of (or premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of Securities by the Company or
any Subsidiary; provided, however, that nothing in this Section shall
-------- -------
prevent the satisfaction of any sinking fund payment in accordance with
Article Fourteen by delivering and crediting pursuant to Section 1402
Securities which have been acquired (upon redemption or otherwise) prior to
such declaration of acceleration or which have been converted pursuant to
Article Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1502 would be applicable.
Section 1504. No Payment When Senior Debt in Default.
--------------------------------------
(a) In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Debt, or in the event that any event of default with respect to any Senior
Debt shall have occurred and be continuing and shall have resulted in such
Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to
exist and such acceleration shall have been rescinded or annulled, or (b) in
the event any judicial proceeding shall be pending with respect to any such
default in payment or such event of default, then no payment (including any
payment which may be payable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the
Securities) shall be made by the Company on account of principal of (or
premium, if any) or interest on the Securities or on account of the purchase
or other acquisition of Securities by the Company or any Subsidiary;
provided, however, that nothing in this Section shall prevent the
-------- -------
satisfaction of any sinking fund payment in accordance with Article Fourteen
by delivering and crediting pursuant to Section 1402 Securities which have
been acquired (upon redemption or otherwise) prior to such default in
payment or event of default or which have been converted pursuant to Article
Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1502 would be applicable.
Section 1505. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any Proceeding referred to in Section 1502 or
under the conditions described in Sections 1503 and 1504, from making
payments at any time of principal of (and premium, if any) or interest on
the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest on the Securities or the retention of such
payment by the Holders, if, at the time of such application by the Trustee,
it did not have knowledge that such payment would have been prohibited by
the provisions of this Article.
Section 1506. Subrogation to Rights of Holders of Senior Debt.
-----------------------------------------------
Subject to the payment in full of all Senior Debt, or the
provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, the Holders of the
Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the
provisions of this Article (equally and ratably with the holders of all
indebtedness of the Company which by its express terms in subordinated to
indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior
Debt to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any)
and interest on the Securities shall be paid in full. If the Trustee or the
Holders of the Securities are not for any reason entitled to be subrogated
to the rights of holders of Senior Debt in respect of such payment or
distribution, then the Trustee or the Holders of the Securities may require
each holder of Senior Debt to whom any such payment or distribution is made
as a condition to such payment or distribution to assign its Senior Debt to
the extent of such payment or distribution and all rights with respect
thereto to the Trustee on behalf of the Holders. Such assignment shall not
be effective until such time as all Senior Debt has been paid in full or
payment thereof provided for. For purposes of such subrogation or
assignment, no payments or distributions to the holders of the Senior Debt
of any cash, property or securities to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article,
and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall,
as among the Company, its creditors other than holders of Senior Debt, and
the Holders of the Securities, be deemed to be a payment or distribution by
the Company to or on account of the Senior Debt.
Section 1507. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Debt on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Debt, and the Holders of the
Securities, the obligations of the Company, which are absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, are intended to rank equally with all other general
unsecured obligations of the Company), to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Debt; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture including, without limitation, filing and
voting claims in any Proceeding, subject to the rights, if any, under this
Article of the holders of Senior Debt to receive cash, property and secur-
ities otherwise payable or deliverable to the Trustee or such Holder.
Section 1508. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination provided in this Article and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
Section 1509. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any
such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities, and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter or increase, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same
or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any
manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 1510. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from
any trustee, agent or representative therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section
601, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
-------- -------
provided for in this Section at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purpose for
which such money was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Debt (or a trustee,
agent or representative therefor) to establish that such notice has been
given by a holder of Senior Debt (or a trustee, agent or representative
therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant
to this Article, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt
held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 1511. Reliance on Judicial Order or Certificate of Liquidating
Agent.
--------------------------------------------------------
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
Section 1512. Trustee Not Fiduciary For Holders of Senior Debt.
------------------------------------------------
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt
and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company
or to any other Person cash, property or securities to which any holders of
Senior Debt shall be entitled by virtue of this Article or otherwise.
Section 1513. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
-----------------------------------------------------------
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
Section 1514. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
Section 1515. Defeasance of This Article Fifteen.
----------------------------------
The subordination of the Securities provided by this Article
Fifteen is expressly made subject to the provisions for defeasance or
covenant defeasance in Article Thirteen and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Fifteen.
Section 1516. Certain Conversions Deemed Payment.
---------------------------------
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance
with Article Twelve shall not be deemed to constitute a payment or
distribution on account of the principal of (or premium, if any) or interest
on Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion of a Security
shall be deemed to constitute payment on account of the principal of such
security. For the purposes of this Section, the term "junior securities"
means (a) shares of any stock of any class of the Company and (b) securities
of the Company which are subordinated in right of payment to all Senior Debt
which may be outstanding at the time of issuance or delivery of such
securities to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the
Securities, the right, which is absolute and unconditional, of the Holder of
any Security to convert such Security in accordance with Article Twelve.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
ORION CAPITAL CORPORATION
By
--------------------------
Attest:
-----------------------
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as
Trustee
By
--------------------------
Attest:
-----------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1994, before me personally came
---- -----------
, to me known, who, being by me duly sworn, did
-----------------------------
depose and say that (s)he is of ORION CAPITAL
-----------------------------
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
(s)he signed her/his name thereto by like authority.
-------------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1994, before me personally came
---- ------------
, to me known, who, being by me duly sworn, did
-----------------------------
depose and say that (s)he is of STATE STREET BANK AND
----------------------
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, one of the corporations
described in and which executed the foregoing instrument; that (s)he knows
the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that (s)he signed her/his name thereto by
like authority.
-------------------------------
<PAGE>
EXHIBIT 12
<PAGE>
<TABLE>
<CAPTION>
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
Three
Months
Ended Year Ended December 31,
March 31, ---------------------------------------
1994 1993 1992 1991 1990 1989
--------- ------- ------- ------- ------- -------
(000s omitted except for ratios and percentages)
<S> <C> <C> <C> <C> <C> <C>
Earnings before equity in
earnings of affiliates,
federal income taxes,
cumulative effect of
adoption of new accounting
principles and extra-
ordinary item. . . . . . . $14,181 $63,118 $36,720 $44,862 $26,802 $32,800
Dividends from affiliates. . 905 3,135 3,072 - - -
Fixed charges deducted from
earnings . . . . . . . . . 4,361 17,280 17,007 20,837 24,737 22,825
------- ------- ------- ------- ------- -------
Earnings available for payment
of fixed charges . . . . . $19,447 $83,533 $56,799 $65,699 $51,539 $55,625
======= ======= ======= ======= ======= =======
Fixed charges:
Interest expense . . . . . $ 3,388 $13,288 $12,932 $16,330 $19,964 $18,058
Portion of rent deemed to
be interest. . . . . . . 973 3,992 4,075 4,507 4,773 4,767
------- ------- ------- ------- ------- -------
Total fixed charges. . . . $ 4,361 $17,280 $17,007 $20,837 $24,737 $22,825
======= ======= ======= ======= ======= =======
Ratio of earnings to fixed
charges. . . . . . . . . . 4.46 4.83 3.34 3.15 2.08 2.44
==== ==== ==== ==== ==== ====
Preferred stock dividends. . $ - $ 409 $ 6,358 $ 7,276 $ 7,469 $ 7,781
Effective tax rate . . . . . 23.1% 21.4% 2.0% 3.0% 5.0% 7.5%
------- ------- ------- ------- ------- -------
Earnings required for
preferred stock dividends. $ - $ 520 $ 6,488 $ 7,501 $ 7,862 $ 8,412
======= ======= ======= ======= ======= =======
Earnings available for
payment of fixed charges
and preferred stock
dividend requirements. . . $19,447 $84,053 $63,287 $73,200 $59,401 $64,037
======= ======= ======= ======= ======= =======
Combined fixed charges and
preferred stock dividend
requirements . . . . . . . $ 4,361 $17,800 $23,495 $28,338 $32,599 $31,237
======= ======= ======= ======= ======= =======
Ratio of earnings to combined
fixed charges and preferred
stock dividends. . . . . . 4.46 4.72 2.69 2.58 1.82 2.05
==== ==== ==== ==== ==== ====
</TABLE>
<PAGE>
EXHIBIT 15
<PAGE>
May 23, 1994
Orion Capital Corporation
30 Rockefeller Plaza
New York, New York
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim financial information of Orion Capital Corporation and subsidiaries
for the periods ended March 31, 1994 and 1993, as dated April 25, 1994;
because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which was included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 1994, is
being used in this Registration Statement on Form S-3.
We are also aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that
Act.
Hartford, Connecticut
<PAGE>
EXHIBIT 23.2
<PAGE>
INDEPENDENT AUDITORS' CONSENTS
We consent to the incorporation by reference in this Registration Statement
of Orion Capital Corporation on Form S-3 of our reports dated February 22,
1994 and April 15, 1994 appearing in the Annual Report on Form 10-K of
Orion Capital Corporation for the year ended December 31, 1993, as amended
by Form 10-K/A dated April 28, 1994 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
Hartford, Connecticut
May 23, 1994
We consent to the incorporation by reference in this Registration Statement
of Orion Capital Corporation on Form S-3 of our report dated February 21,
1994 appearing in the Annual Report on Form 10-K of Guaranty National
Corporation for the year ended December 31, 1993.
Denver, Colorado
May 23, 1994
<PAGE>
EXHIBIT 24
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or
director of Orion Capital Corporation (the "Company") hereby constitutes
and appoints Alan R. Gruber and Michael P. Maloney, Esq., and each of them,
his true and lawful attorneys-in-fact and agents, each acting alone, with
full power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign the Company's
Registration Statement under the Securities Act of 1933, as amended, on
Form S-3 or any other appropriate form, relating to the registration of
securities of the Company, which may be shares of the Company's Common
Stock, par value $1.00, or preferred stock, par value $1.00 per share,
senior and subordinated debt securities, warrants and depositary shares, up
to an aggregate total market value of $100,000,000 for all such securities,
and to sign any and all amendments (including post-effective amendments) to
such Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every
act and thing requisite or necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Dated: May 4, 1994
Name Title
ALAN R. GRUBER Chairman of the Board
Alan R. Gruber (Principal Executive
and Financial Officer)
DANIEL L. BARRY Vice President and
Daniel L. Barry Controller (Principal
Accounting Officer)
BERTRAM J. COHN Director
Bertram J. Cohn
JOHN C. COLMAN Director
John C. Colman
LARRY D. HOLLEN Director
Larry D. Hollen
ROBERT H. JEFFREY Director
Robert H. Jeffrey
WARREN R. LYONS Director
Warren R. Lyons
JAMES K. MCWILLIAMS Director
James K. McWilliams
Director
Ronald W. Moore
DONALD REICH Director
Donald Reich
ROBERT B. SANBORN Director
Robert B. Sanborn
Director
William J. Shepherd
JOHN R. THORNE Director
John R. Thorne
ROGER B. WARE Director
Roger B. Ware
<PAGE>
ORION CAPITAL CORPORATION
Secretary's Certificate
-----------------------
I, Michael P. Maloney, Secretary of Orion Capital Corporation, a
Delaware corporation (the "Corporation"), DO HEREBY CERTIFY that
attached hereto as Annex A is a true, complete and correct copy of a
resolution duly adopted by the Board of Directors of the Corporation
on May 4, 1994; such resolution has not been amended, modified or re-
scinded and remains in full force and effect.
IN WITNESS WHEREOF, I have executed this Certificate as of the
date set forth below.
Dated: May 23, 1994
/s/ Michael P. Maloney
----------------------------
Secretary
<PAGE>
ANNEX A
RESOLVED, that the proper officers of the Corporation be, and
each of them hereby is, authorized in the name and on behalf of the
Corporation to execute and deliver a power of attorney appointing Alan
R. Gruber and Michael P. Maloney or either of them, to act as
attorneys-in-fact for this Corporation for the purpose of executing
and filing with the SEC, in the name and on behalf of this
Corporation, any such Registration Statement and any amendments
(including, without limitation, post-effective amendments) or
supplements thereto, with any exhibits thereto and other documents in
connection therewith.
<PAGE>
EXHIBIT 25.1
<PAGE>
Securities Act of 1933 File No.:
-------
(If application to determine eligibility of trustee for
delayed offering pursuant to Section 305(b)(2))
-------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------
FORM T-1
--------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
/ / CHECK IF AN APPLICATION TO DETERMINE
--
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
---------------------------------------------------
(Exact name of trustee as specified in its charter)
Not applicable 06-1304336
------------------------ ----------------------
(State of incorporation (I.R.S. Employer
if not a national bank) Identification Number)
750 Main Street, Suite 1114, Hartford, Connecticut 06103
-------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Michael J. D'Angelico, 750 Main Street, Suite 1114, Hartford, CT 203-244-1845
-----------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
Orion Capital Corporation
---------------------------------------------------
(Exact name of obligor as specified in its charter)
DELAWARE 95-6069054
------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
30 Rockefeller Plaza
New York, New York 10112
---------------------------------------- ----------
(address of principal executive offices) (Zip Code)
Subordinated Debt Securities
-----------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency,
Treasury Department of the United States
Washington, D.C.
Board of Governors of the
Federal Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with obligor. If the obligor is an affiliate of the
-------------------------
trustee, describe each such affiliation.
None.
Item 16. List of exhibits. List below all exhibits filed as a part of this
----------------
Statement of Eligibility.
T-1.1. A copy of the Articles of Association of the trustee as
now in effect incorporated herein by reference to
Exhibit T-1.1 filed with Form T-1 Statement,
Registration No. 33-40617.
T-1.2. A copy of the Certificate of the Comptroller of the
Currency.
T-1.3. A copy of the Certification of Fiduciary Powers.
T-1.4. A copy of the existing by-laws of the trustee
incorporated herein by reference to Exhibit T-1.1 filed
with Form T-1 Statement, Registration No. 33-40617.
T-1.5. A copy of each Indenture referred to in Item 4.
Not Applicable.
T-1.6. Consent of the Trustee required by Section 321(b) of the
Act.
T-1.7. A copy of the latest report of condition of the trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
T-1.8. A copy of any order pursuant to which the foreign
trustee is authorized to act as sole trustee under
indentures qualifies or to be qualified under the Act.
Not Applicable.
T-1.9. Foreign trustees are required to furnish a consent to
service of process.
Not Applicable.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base answers to Item 2, the answer to
said Item is based upon incomplete information. Said Item may, however, be
considered correct unless amended by an amendment to this Form T-1.
In answering any item in this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor, or its
directors or officers, or an underwriter for the obligor, the trustee is
relying upon information furnished to it by the obligor and such underwriter
and the trustee disclaims responsibility for the accuracy or completeness
of such information.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, State Street Bank and Trust Company of Connecticut, National
Association, a national banking association organized and existing under the
laws of the United States, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Hartford, and State of Connecticut, on the 28th day of April,
1994.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
By: /s/ Donald E. Smith
-----------------------------
Name: Donald E. Smith
Its: Vice President
<PAGE>
EXHIBIT T-1.2
----------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
----------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering, regulation and
supervision of all National Banking Associations.
2. "State Street Bank and Trust Company of Connecticut, National
Association", Hartford, Connecticut, (Charter No. 22272), is a National
Banking Association formed under the laws of the United States and is
authorized thereunder to transact the business of banking on the date of
this Certificate.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of office to be
affixed to these presents at the
Treasury Department, in the City
of Washington and District of
Columbia, this 8th day of March,
1994.
/s/ Eugene A. Ludwig
----------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT T-1.3
----------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
----------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATION OF FIDUCIARY POWERS
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify the
records in this Office evidence "State Street Bank and Trust Company of
Connecticut, National Association", Hartford, Connecticut, (Charter No.
22272), was granted, under the hand and seal of the Comptroller, the right
to act in all fiduciary capacities authorized under the provisions of The
Act of Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a.
I further certify the authority so granted remains in full force and effect.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of Office of the
Comptroller of the Currency to
be affixed to these presents at
the Treasury Department, in the
City of Washington and District
of Columbia, this 9th day of
March, 1994.
/s/ Eugene A. Ludwig
----------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT T-1.6
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
The undersigned, as Trustee under an Indenture to be entered into
between Orion Capital Corporation and State Street Bank and Trust Company
of Connecticut, National Association, as Trustee, does hereby consent that,
pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
reports of examinations with respect to the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Donald E. Smith
----------------------------
Name: Donald E. Smith
Its: Vice President
Dated: April 28, 1994
<PAGE>
EXHIBIT T-1.7
This form is for use by National Banks only. It should be used for
publication purposes only, and should not be returned to the FDIC.
----------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
----------------------------------------------------------------------------
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
STATE STREET BANK AND TRUST COMPANY OF CT, N.A. of HARTFORD
----------------------------------------------- --------
Name of Bank City
In the state of Connecticut, at the close of business on March 31, 1994,
-----------
published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
Charter Number 33132 Comptroller of the Currency Northeastern District
----- ------------
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin...... 647
Interest-bearing balances............................... 0
Securities:
Held-to-maturity securities............................. 0
Available-for-sale securities........................... 90
Federal funds sold........................................ 0
Securities purchased under agreements to resell........... 0
Loans and lease financing receivables:
Loans and leases, net of unearned income...... 0
LESS: Allowance for loan and lease losses..... 0
LESS: Allocated transfer risk reserve......... 0
Loans and leases, net of unearned income,
allowance, and reserve................................ 0
Assets held in trading accounts........................... 0
Premises and fixed assets (including capitalized leases).. 534
Other real estate owned................................... 0
Investments in unconsolidated subsidiaries and
associated companies.................................... 0
Customers' liability to this bank on acceptances
outstanding............................................. 0
Intangible assets......................................... 6,726
Other assets.............................................. 589
Total assets.............................................. 8,586
Losses deferred pursuant to 12 U.S.C. 1823(j)............. N/A
Total assets and losses deferred pursuant to
12 U.S.C. 1823(j)....................................... 8,586
LIABILITIES
Deposits:
In domestic offices..................................... 0
Noninterest-bearing.......................... 0
Interest-bearing............................. 0
Federal funds purchased................................... 0
Securities sold under agreements to repurchase............ 0
Demand notes issued to the U.S. Treasury.................. 0
Trading liabilities....................................... 0
Other borrowed money:
With original maturity of one year or less.............. 0
With original maturity of more than one year............ 0
Mortgage indebtedness and obligations under
capitalized leases...................................... 0
Bank's liability on acceptances executed and outstanding.. 0
Subordinated notes and debentures......................... 0
Other liabilities......................................... 4,114
Total liabilities......................................... 4,114
Limited-life preferred stock and related surplus.......... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............. 0
Common stock.............................................. 500
Surplus................................................... 2,500
Undivided profits and capital reserves.................... 1,472
Net unrealized holding gains (losses) on
available-for-sale securities........................... 0
Total equity capital...................................... 4,472
Losses deferred pursuant to 12 U.S.C. 1823(j)............. N/A
Total equity capital and losses deferred pursuant
to 12 U.S.C. 1823(j).................................... 4,472
Total liabilities, limited-life preferred stock, equity
capital and losses deferred pursuant to
12 U.S.C. 1823(j)....................................... 8,586
</TABLE>
<PAGE>
We, the undersigned directors, attest I, MICHAEL D'ANGELICO
to the correctness of this statement --------------------------------
of resources and liabilities. We Name
declare that it has been examined by
us, and to the best of our knowledge VICE PRESIDENT & GENERAL MANAGER
and belief has been prepared in --------------------------------
conformance with the instructions and Title
is true and correct.
of the above-named bank do hereby
declare that this Report of
Condition is true and correct to
the best of my knowledge and
belief.
/s/ F.W. Kawam
------------------------------------
/s/ Mary Gamache
------------------------------------ Directors
/s/ L. Amato
------------------------------------
/s/ Michael D'Angelico
----------------------------------
Signature
4/18/94
----------------------------------
Date
<PAGE>
EXHIBIT 25.1
<PAGE>
Securities Act of 1933 File No.:
-------
(If application to determine eligibility of trustee for
delayed offering pursuant to Section 305(b)(2))
-------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------
FORM T-1
--------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
/ / CHECK IF AN APPLICATION TO DETERMINE
--
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
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(Exact name of trustee as specified in its charter)
Not applicable 06-1304336
------------------------ ----------------------
(State of incorporation (I.R.S. Employer
if not a national bank) Identification Number)
750 Main Street, Suite 1114, Hartford, Connecticut 06103
-------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Michael J. D'Angelico, 750 Main Street, Suite 1114, Hartford, CT 203-244-1845
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(Name, address and telephone number of agent for service)
Orion Capital Corporation
---------------------------------------------------
(Exact name of obligor as specified in its charter)
DELAWARE 95-6069054
------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
30 Rockefeller Plaza
New York, New York 10112
---------------------------------------- ----------
(address of principal executive offices) (Zip Code)
Subordinated Debt Securities
-----------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency,
Treasury Department of the United States
Washington, D.C.
Board of Governors of the
Federal Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with obligor. If the obligor is an affiliate of the
-------------------------
trustee, describe each such affiliation.
None.
Item 16. List of exhibits. List below all exhibits filed as a part of this
----------------
Statement of Eligibility.
T-1.1. A copy of the Articles of Association of the trustee as
now in effect incorporated herein by reference to
Exhibit T-1.1 filed with Form T-1 Statement,
Registration No. 33-40617.
T-1.2. A copy of the Certificate of the Comptroller of the
Currency.
T-1.3. A copy of the Certification of Fiduciary Powers.
T-1.4. A copy of the existing by-laws of the trustee
incorporated herein by reference to Exhibit T-1.1 filed
with Form T-1 Statement, Registration No. 33-40617.
T-1.5. A copy of each Indenture referred to in Item 4.
Not Applicable.
T-1.6. Consent of the Trustee required by Section 321(b) of the
Act.
T-1.7. A copy of the latest report of condition of the trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
T-1.8. A copy of any order pursuant to which the foreign
trustee is authorized to act as sole trustee under
indentures qualifies or to be qualified under the Act.
Not Applicable.
T-1.9. Foreign trustees are required to furnish a consent to
service of process.
Not Applicable.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base answers to Item 2, the answer to
said Item is based upon incomplete information. Said Item may, however, be
considered correct unless amended by an amendment to this Form T-1.
In answering any item in this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor, or its
directors or officers, or an underwriter for the obligor, the trustee is
relying upon information furnished to it by the obligor and such underwriter
and the trustee disclaims responsibility for the accuracy or completeness
of such information.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, State Street Bank and Trust Company of Connecticut, National
Association, a national banking association organized and existing under the
laws of the United States, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Hartford, and State of Connecticut, on the 28th day of April,
1994.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
By: /s/ Donald E. Smith
-----------------------------
Name: Donald E. Smith
Its: Vice President
<PAGE>
EXHIBIT T-1.2
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Comptroller of the Currency
Administrator of National Banks
----------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering, regulation and
supervision of all National Banking Associations.
2. "State Street Bank and Trust Company of Connecticut, National
Association", Hartford, Connecticut, (Charter No. 22272), is a National
Banking Association formed under the laws of the United States and is
authorized thereunder to transact the business of banking on the date of
this Certificate.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of office to be
affixed to these presents at the
Treasury Department, in the City
of Washington and District of
Columbia, this 8th day of March,
1994.
/s/ Eugene A. Ludwig
----------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT T-1.3
----------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
----------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATION OF FIDUCIARY POWERS
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify the
records in this Office evidence "State Street Bank and Trust Company of
Connecticut, National Association", Hartford, Connecticut, (Charter No.
22272), was granted, under the hand and seal of the Comptroller, the right
to act in all fiduciary capacities authorized under the provisions of The
Act of Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a.
I further certify the authority so granted remains in full force and effect.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of Office of the
Comptroller of the Currency to
be affixed to these presents at
the Treasury Department, in the
City of Washington and District
of Columbia, this 9th day of
March, 1994.
/s/ Eugene A. Ludwig
----------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT T-1.6
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
The undersigned, as Trustee under an Indenture to be entered into
between Orion Capital Corporation and State Street Bank and Trust Company
of Connecticut, National Association, as Trustee, does hereby consent that,
pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
reports of examinations with respect to the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Donald E. Smith
----------------------------
Name: Donald E. Smith
Its: Vice President
Dated: April 28, 1994
<PAGE>
EXHIBIT T-1.7
This form is for use by National Banks only. It should be used for
publication purposes only, and should not be returned to the FDIC.
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Comptroller of the Currency
Administrator of National Banks
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R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
STATE STREET BANK AND TRUST COMPANY OF CT, N.A. of HARTFORD
----------------------------------------------- --------
Name of Bank City
In the state of Connecticut, at the close of business on March 31, 1994,
-----------
published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
Charter Number 33132 Comptroller of the Currency Northeastern District
----- ------------
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin...... 647
Interest-bearing balances............................... 0
Securities:
Held-to-maturity securities............................. 0
Available-for-sale securities........................... 90
Federal funds sold........................................ 0
Securities purchased under agreements to resell........... 0
Loans and lease financing receivables:
Loans and leases, net of unearned income...... 0
LESS: Allowance for loan and lease losses..... 0
LESS: Allocated transfer risk reserve......... 0
Loans and leases, net of unearned income,
allowance, and reserve................................ 0
Assets held in trading accounts........................... 0
Premises and fixed assets (including capitalized leases).. 534
Other real estate owned................................... 0
Investments in unconsolidated subsidiaries and
associated companies.................................... 0
Customers' liability to this bank on acceptances
outstanding............................................. 0
Intangible assets......................................... 6,726
Other assets.............................................. 589
Total assets.............................................. 8,586
Losses deferred pursuant to 12 U.S.C. 1823(j)............. N/A
Total assets and losses deferred pursuant to
12 U.S.C. 1823(j)....................................... 8,586
LIABILITIES
Deposits:
In domestic offices..................................... 0
Noninterest-bearing.......................... 0
Interest-bearing............................. 0
Federal funds purchased................................... 0
Securities sold under agreements to repurchase............ 0
Demand notes issued to the U.S. Treasury.................. 0
Trading liabilities....................................... 0
Other borrowed money:
With original maturity of one year or less.............. 0
With original maturity of more than one year............ 0
Mortgage indebtedness and obligations under
capitalized leases...................................... 0
Bank's liability on acceptances executed and outstanding.. 0
Subordinated notes and debentures......................... 0
Other liabilities......................................... 4,114
Total liabilities......................................... 4,114
Limited-life preferred stock and related surplus.......... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............. 0
Common stock.............................................. 500
Surplus................................................... 2,500
Undivided profits and capital reserves.................... 1,472
Net unrealized holding gains (losses) on
available-for-sale securities........................... 0
Total equity capital...................................... 4,472
Losses deferred pursuant to 12 U.S.C. 1823(j)............. N/A
Total equity capital and losses deferred pursuant
to 12 U.S.C. 1823(j).................................... 4,472
Total liabilities, limited-life preferred stock, equity
capital and losses deferred pursuant to
12 U.S.C. 1823(j)....................................... 8,586
</TABLE>
<PAGE>
We, the undersigned directors, attest I, MICHAEL D'ANGELICO
to the correctness of this statement --------------------------------
of resources and liabilities. We Name
declare that it has been examined by
us, and to the best of our knowledge VICE PRESIDENT & GENERAL MANAGER
and belief has been prepared in --------------------------------
conformance with the instructions and Title
is true and correct.
of the above-named bank do hereby
declare that this Report of
Condition is true and correct to
the best of my knowledge and
belief.
/s/ F.W. Kawam
------------------------------------
/s/ Mary Gamache
------------------------------------ Directors
/s/ L. Amato
------------------------------------
/s/ Michael D'Angelico
----------------------------------
Signature
4/18/94
----------------------------------
Date
