<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) JULY 12, 1995
-------------
ORION CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-7801 95-6069054
-------- --------- ----------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
600 Fifth Avenue
New York, New York 10020-2302
--------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(212) 332-8080
--------------
NOT APPLICABLE
-------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE> 2
Item 5. Other Events.
The exhibits listed in the Index to Exhibits under Item 7 below are
filed for the purpose of incorporating them into Orion's Registration
Statement on Form S-3 declared effective August 12, 1994 (File No.
33-53759).
Set forth below is Item 14 of Part II of Registration Statement No. 33-53759:
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the registrant's expenses with respect
to the issuance and distribution of the securities being registered. Except
for the SEC Registration Fee, all amounts shown are estimates:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee $ 34,483
Printing and engraving fees and expenses 25,000
Accounting fees and expenses 50,000
Legal fees and expenses 205,000
Blue sky fees and expenses 25,000
Trustee's Fees and Expenses 6,500
Rating Agency fees 86,250
Miscellaneous 10,000
-------
TOTAL $442,233
-------
</TABLE>
Item 7.
(c) The exhibits accompanying this report are listed in the
Index to Exhibits below.
<PAGE> 3
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
ORION CAPITAL CORPORATION
Date: July 14, 1995 By: /s/ Michael P. Maloney
------------------------------
Name: Michael P. Maloney
Title: Vice President, General
Counsel and Secretary
<PAGE> 4
Index to Exhibits
<TABLE>
<CAPTION>
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
1 Underwriting Agreement Filed herewith.
for Orion Capital
Corporation's 7-1/4%
Senior Notes due 2005
4.9 Senior Debt Indenture Filed herewith.
relating to the 7-1/4%
Senior Notes due 2005 of
Orion Capital Corporation
with State Street Bank
and Trust Company of
Connecticut, National
Association, Trustee
4.9(a) First Supplemental Filed herewith.
Indenture to the
Indenture referred to
in Exhibit 4.9 above.
4.9(b) Form of Global 7-1/4% Filed herewith.
Senior Notes of Orion
Capital Corporation
</TABLE>
<PAGE> 1
$100,000,000
ORION CAPITAL CORPORATION
7 1/4% Senior Notes due 2005
UNDERWRITING AGREEMENT
July 12, 1995
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Orion Capital Corporation, a Delaware corporation (the
"Company"), proposes to sell $100,000,000 of the Company's 7 1/4% Senior Notes
due 2005 (the "Notes"). The Notes are to be issued pursuant to an Indenture
(the "Base Indenture") dated as of July 17, 1995 between the Company and State
Street Bank and Trust Company of Connecticut, National Association as trustee
(the "Trustee"), and a First Supplemental Indenture to the Base Indenture,
dated as of July 17, 1995 (the "Supplemental Indenture", and together with the
Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Trustee.
1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees (it being understood and
agreed that all representations and warranties by the Company with respect to
Guaranty National Corporation and its subsidiaries (collectively "GNC") are
being made solely to the Company's knowledge) that:
(a) A registration statement on Form S-3 (No.
33-53759), and including a prospectus for
<PAGE> 2
the registration under the United States Securities Act of
1933, as amended (the "Securities Act"), of up to $100,000,000
of a combination of debt securities (including the Notes)
preferred stock, common stock, depositary shares, and warrants
has (i) been prepared by the Company in conformity, in all
material respects, with the requirements of the Securities Act
and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act; and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Copies of such registration statement and any
amendments thereto have been delivered by the Company to you
as the underwriters (the "Underwriters"). As used herein,
"Prospectus Supplement" means a prospectus supplement
specifically relating to the Notes, filed with, or transmitted
for filing to, or to be promptly hereafter filed with or
transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act; Registration Statement" means the
registration statement as amended to the date of this
Agreement; "Effective Date" means the date and time as of
which the Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared
effective by the Commission; "Base Prospectus" means the
prospectus included in the Registration Statement;
"Prospectus" means the Base Prospectus together with the
Prospectus Supplement; "Preliminary Prospectus" means a
preliminary prospectus supplement specifically relating to the
Notes together with the Base Prospectus. As used herein,
"Base Prospectus," "Prospectus" and "Preliminary Prospectus"
shall include in each case the documents, if any, incorporated
by reference therein. "Supplement," "amendment" and "amend"
as used herein shall be deemed to refer to and include any
documents incorporated by reference pursuant to Item 12 of
Form S-3 under the Securities Act, that are filed subsequent
to the date of the Base Prospectus by the Company with the
Com-
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mission pursuant to the Exchange Act of 1934, as amended (the
"Exchange Act"). Any reference to any amendment to the
Registration Statement shall be deemed to include any annual
report of the Company filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective
Date that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they
become effective or are filed with the Commission, as the case
may be, conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations thereunder
and do not and will not, as of the applicable Effective Date
(as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (as to the Prospectus and
any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, (in the case of the Prospectus, in light
of the circumstances in which they were made), not misleading;
provided, however, that no representation or warranty is made
as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for
use in the Registration Statement or the Prospectus; and the
Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable
rules and regulations thereunder.
(c) The documents (as amended prior to the date
hereof) incorporated or deemed to be incorporated by reference
in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all
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material respects with the requirements of the Securities Act
or the Exchange Act, as applicable, and the Rules and
Regulations of the Commission thereunder, and when read
together with the other information in the Prospectus at the
time the Registration Statement and any amendments thereto
became effective and at the Closing Date (as defined below),
did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading.
(d) The Company and each of the subsidiaries of
the Company set forth on Schedule II (collectively, the
"Principal Subsidiaries") have been duly incorporated and are
validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and
have all power and authority necessary to own, lease or
operate their respective properties and to conduct the
businesses in which they are engaged as described or incor-
porated by reference in the Prospectus; except where the
failure to so qualify would not have a material adverse effect
on the consolidated financial position, stockholders' equity,
results of operations or business of the Company and its
subsidiaries taken as a whole.
(e) The Company has an authorized capitalization
as set forth in the Prospectus under "Description of Capital
Stock," "Description of Preferred Stock" and "Description of
Common Stock" and in the documents incorporated by reference
(except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to
in the Prospectus and in documents incorporated by reference),
and all of the issued and outstanding shares of capital stock
of the Company have been
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<PAGE> 5
duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in the Prospectus under such
sections and in documents incorporated therein by reference;
and all of the issued and outstanding shares of capital stock
of the Principal Subsidiaries of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable and, except as set forth in the Prospectus and
in documents incorporated therein by reference, and except for
restrictions on transfers provided (i) under insurance or
insurance holding company laws or regulations, and (ii) under
federal and state securities laws, are owned directly or
indirectly by the Company, free and clear of any security
interests, mortgages, pledges, liens, encumbrances, equities
or claims.
(f) The Notes have been duly and validly
authorized by the Company for issuance and, when duly
executed, issued and delivered by the Company, and
authenticated by the Trustee pursuant to the provisions of
this Agreement and the Indenture, respectively, against
payment therefor as provided herein and in the Registration
Statement will have been duly executed, issued and outstanding
and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors'
rights generally and general equitable principles (whether
considered in a proceeding in equity or at law); and the
Notes, when issued and delivered, will conform in all material
respects to the description contained in the Prospectus.
(g) Each of the Base and the Supplemental
Indenture has been duly authorized by the Company, and when
duly executed by the proper officers of the Company (assuming
due execution and
5
<PAGE> 6
delivery by the Trustee) and delivered by the Company will
constitute a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a
proceeding in equity or at law); and the Indenture conforms
in all material respects to all statements relating thereto
contained in the Prospectus.
(h) This Agreement has been duly authorized,
executed and delivered and the execution, delivery and
performance of this Agreement and the Indenture by the
Company, including the issuance and delivery of the Notes and
the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder, have been or will be duly authorized
by all necessary corporate actions prior to the date hereof
and do not and will not conflict with or result in a breach
of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets
of the Company (except for the liens provided for in the
Indenture) or any of its subsidiaries pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries or, to the
Company's knowledge, any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and except for the
registration of the Notes under the Securities Act, the
qualification of the Indenture under
6
<PAGE> 7
the Trust Indenture Act, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Notes by the Underwriters, no consent,
approval, authorization or order of, or filing, registration
or qualification of or with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement or the Indenture by the Company
and the consummation of the transactions contemplated hereby
and thereby, or for the offering, issuance or sale of the
Notes.
(i) There are no agreements or understandings
between the Company and any person granting such person the
right to require the Company to file a registration statement
under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(j) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus there has not been (except as disclosed in the
Prospectus Supplement), (A) any material adverse change in the
financial position, stockholders' equity, results of
operations, business or operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (B) any transaction entered into
by the Company or any of its subsidiaries, other than those in
the ordinary course of business, that is material to the
Company and its subsidiaries taken as a whole, and (C) except
for regular quarterly dividends, any dividend or distribution
of any kind declared, paid or made by the Company on any class
of its capital stock.
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<PAGE> 8
(k) The financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by
reference in the Prospectus present fairly the financial
condition and results of operations of the Company and its
consolidated subsidiaries and of the Company's interest in GNC
at the dates and for the periods indicated; and except as
noted, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved; and the supporting schedules
incorporated in the Registration Statement present fairly the
information required to be stated therein.
(l) Deloitte & Touche LLP, who have certified
certain financial statements of the Company, whose report
appears in the Prospectus, or is incorporated by reference
therein and who have delivered the initial letter referred to
in Section 7(g) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(m) Except as described in the Registration
Statement, Prospectus or in documents incorporated therein by
reference, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any
of its subsidiaries is the subject which is required to be
disclosed in the Registration Statement, Prospectus or in
documents incorporated therein by reference, or which, if
determined adversely to the Company or any of its
subsidiaries, would likely have a material adverse effect on
the consolidated financial position, stockholders' equity,
results of operations or business of the Company and its
subsidiaries taken as a whole or the transactions contemplated
by this Agreement; and to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; all pending
legal or governmental proceed-
8
<PAGE> 9
ings to which the Company or any subsidiary is a party or of
which any of their respective properties or assets is the
subject which are not described in the Registration Statement,
Prospectus, or documents incorporated therein by reference,
excluding routine litigation incidental to the Company's
business, are not material to the Company and its subsidiaries
taken as a whole.
(n) There are no contracts or other documents of
the Company or any of the Principal Subsidiaries which are
required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been described
in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by
the Rules and Regulations except for this Agreement, the Base
Indenture, and the Supplemental Indenture all of which will be
filed as exhibits to a Form 8-K to be filed by the Company
prior to the Closing Date.
(o) The Company and the Principal Subsidiaries
(i) make and keep accurate books and records and (ii) maintain
internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance
with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation
of their financial statements in conformity with generally
accepted accounting principles and to maintain accountability
for their assets, (C) access to its assets is permitted only
in accordance with management's general or specific
authorization and (D) the reported accountability for their
assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(p) Neither the Company nor any of the Principal
Subsidiaries is (i) in violation of its charter or by-laws, or
(ii) in default, and no event has occurred which, with notice
or
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lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or
condition contained in any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease, or other agreement or
instrument to which the Company or any of the Principal
Subsidiaries is a party or by which it or any of them is or
may be bound or to which any of the properties or assets of
the Company or any of the Principal Subsidiaries is subject,
except for such defaults that would not have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations or business of the
Company and its subsidiaries taken as a whole or (iii) in
violation in any respect of any law, ordinance, governmental
rule, regulation or court decree to which it or any of them or
its or any of their property or assets may be subject except
for such violations of any law, ordinance, governmental rule,
regulation or court decree that would not have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations or business of the
Company and its subsidiaries taken as a whole.
(q) The Company has complied and will comply with
all the provisions of Florida H.B. 1771, codified as Section
517.075 of the Florida statutes, as contemplated by the
regulations promulgated thereunder relating to issuers doing
business with Cuba.
(r) Each of the Company and its Principal
Subsidiaries possesses such certificates, authorities or
permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the
business now operated by it, and neither the Company nor any
of the Principal Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any
such certificate, authority or permit which, individually or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the
consolidated financial
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<PAGE> 11
position, stockholders' equity, results of operations or
business of the Company and its subsidiaries taken as a whole.
(s) Each of the Company and its Principal
Subsidiaries that is an insurance company has filed all
reports, information statements and other documents with the
insurance regulatory authorities of its jurisdiction of
incorporation and jurisdictions in which it is qualified to do
business as are required to be filed pursuant to the insurance
statutes of such jurisdictions and the rules and regulations
of the insurance regulatory authorities thereunder (the
"Applicable Insurance Laws"), except where the failure to file
such statements or reports would not, individually or in the
aggregate, have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operation
or business of the Company and its subsidiaries taken as a
whole. Except as described in the Prospectus or otherwise
described to the Underwriters in writing, and except for
treaties or agreements the unenforceability of which would
not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, stockholders'
equity, results of operations or business of the Company and
its subsidiaries taken as a whole, all reinsurance treaties
and all contracts or agreements providing for reinsurance
ceded are in full force and effect and the Company and the
Principal Subsidiaries are not in violation of, or in default
in the performance, observance or fulfillment of, any material
obligation, agreement, covenant or condition contained in any
thereof (except for violations or defaults which would not
have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations or
business of the Company and its subsidiaries taken as a
whole).
(t) The "A" rating assigned to the Principal
Subsidiaries by A.M. Best & Company, Inc. ("Best") has not
been lowered or, to the Company's knowledge, threatened to be
lowered by Best nor, to the Company's knowledge, have such
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<PAGE> 12
subsidiaries been placed under surveillance or review by Best.
(u) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for
the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered
thereby.
2. Purchase of the Notes by the Underwriters. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell to the
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at the price agreed upon by the Underwriters and the
Company the respective principal amount of the Notes set forth opposite such
Underwriter's name in Schedule I hereto at a price (the "Purchase Price") equal
to 98.555% of their principal amount plus accrued interest, if any from July
17, 1995 to the date of payment and delivery.
3. Offering of Notes by the Underwriters. Upon
authorization by Lehman Brothers Inc. of the release of the Notes, the several
Underwriters propose to offer the Notes for sale upon the terms and conditions
set forth in the Prospectus and any amendment or supplement thereto relating to
the Notes.
4. Delivery of and Payment for the Notes. Delivery of
and payment for the Notes shall be made at the offices of Skadden, Arps, Slate,
Meagher & Flom, 919 Third Avenue, New York, New York, or at such other place as
shall be agreed upon by the Underwriters and the Company, at 10:00 A.M., New
York City time, on the third full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representative and the Company. This date and time are referred to
as the Closing Date. On the Closing Date, the Company shall deliver or cause
to be delivered to the Representative for the account of each Underwriter
against payment to or upon the order of the Company of the purchase price by
certified or official bank check or checks in, or by wire transfer of,
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition
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<PAGE> 13
of the obligation of each Underwriter hereunder. Upon delivery, a single
global Note shall be registered in the name of Cede & Co. The Notes will be
delivered through the book-entry facilities of the Depository Trust Company
("DTC"). The Note will be made available for inspection by the Underwriters
and by DTC by 1:00 P.M., New York time, on the Business Day (as defined herein)
prior to the Closing Date at such place in New York City as the Underwriters
and the Company shall agree.
5. Further Agreements of the Company. The Company
agrees:
(a) To prepare the Prospectus in a form approved
by the Underwriters and to file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act; to make no further
amendment or supplement to the Registration Statement or to
the Prospectus prior to the Closing Date except as permitted
herein; to advise the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriters with copies
thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Notes;
to advise the Underwriters, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of
the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such
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<PAGE> 14
purpose, of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus
or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to the Underwriters and
to counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement and the Indenture), (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto); and, if the
delivery of a prospectus is required at any time after the
Effective Date in connection with the offering or sale of the
Notes and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus (or to file under the
Exchange Act any document incorporated by reference in the
Prospectus) in order to comply with the Securities Act or the
Exchange Act, to notify the Underwriters and, upon their
request, to file such document and to prepare and furnish
without
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<PAGE> 15
charge to each Underwriter and to any dealer in securities as
many copies as the Underwriters may from time to time
reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance.
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the judgment of
the Company and Lehman Brothers Inc., be required by the
Securities Act or requested by the Commission.
(e) Prior to filing with the Commission any
amendment to the Registration Statement or supplement to the
Prospectus, any document incorporated by reference in the
Prospectus or any Prospectus pursuant to Rule 424 of the Rules
and Regulations, to furnish a copy thereof to the Underwriters
and counsel for the Underwriters and obtain the consent of
Lehman Brothers Inc. to the filing.
(f) As soon as practicable after the date of
this Agreement, but in any event not later than the earliest
required filing date by the Company of a Form 10-K after the
end of the 12-month period beginning at the end of the fiscal
quarter of the Company during which this Agreement was
executed, to make generally available to its security holders
and to deliver to the Underwriters an earnings statement,
conforming with the requirements of Section 11(a) of the
Securities Act covering such twelve-month period.
(g) For a period of five years following the
Closing Date, to furnish to the Underwriters, copies of all
materials furnished by the Company to its shareholders and all
public reports and all periodic reports filed by the Company
with the Commission pursuant to the Exchange Act or any Rule
or Regulation of the Commission thereunder.
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<PAGE> 16
(h) Promptly from time to time to take such
action as the Underwriters may reasonably request to qualify
the Notes for offering and sale under the securities laws of
such jurisdictions as the Underwriters may request and to
comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Notes, in
each jurisdiction in which the Notes and have been so
qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less
than one year from the Closing Date, provided, however, that
in connection therewith the Company shall not be required to
qualify as a foreign corporation in any jurisdiction where it
is not so qualified.
(i) To apply the net proceeds from the sale of
the Notes being sold by the Company as set forth in the
Prospectus.
6. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Notes and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided
in this Agreement; (d) the costs of producing and distributing this Agreement
and any other related documents in connection with the offering, purchase, sale
and delivery of the Note; (g) any applicable listing or other fees; (h) the
fees and expenses of qualifying the Notes under the securities laws of the
several jurisdictions as provided in Section 5(h) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); and (l) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement;
provided that, except as provided in this Section 6 and in Section 11 the
Underwriters
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<PAGE> 17
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Notes which they may sell and the
expenses of advertising any offering of the Notes made by the Underwriters.
7. Conditions of Underwriters' Obligations. The
respective obligations of the Underwriters hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Company contained herein, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed
with the Commission in accordance with Section 5(a); no stop
order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the
Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) No Underwriter, shall have discovered and
disclosed to the Company on or prior to the Closing Date that
the Registration Statement or the Prospectus or any amendment
or supplement thereto contains an untrue statement of a fact
which, in the opinion of Skadden, Arps, Slate, Meagher & Flom,
counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
statements therein, (in the case of the Prospectus, in light
of the circumstances in which they were made), not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form and validity of
this Agreement, the Indenture, the Notes, the Registration
Statement and the Prospectus, and all other legal matters
relating to this Agreement and the Indenture and the
transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material
17
<PAGE> 18
respects to counsel for the Underwriters, and the Company
shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to
pass upon such matters.
(d) Michael P. Maloney, General Counsel to the
Company, shall have furnished to the Underwriters his
favorable opinion, as general counsel to the Company,
addressed to the Underwriters and dated such Closing Date, in
form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company is duly incorporated and
validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement or in documents incorporated
therein by reference and to enter into and perform
its obligations under this Agreement and the
Indenture.
(iii) The Company is duly qualified as a
foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is required.
(iv) The authorized, issued and
outstanding capital stock of the Company is, in all
material respects, as set forth in the Prospectus
under "Description of Capital Stock," "Description of
Preferred Stock" and "Description of Common Stock"
and in the documents incorporated by reference
(except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans
referred to in the Prospectus and in documents
incorporated by reference), and the shares of issued
and outstanding Common Stock have
18
<PAGE> 19
been duly authorized and validly issued and are fully
paid and nonassessable.
(v) The Notes have been duly authorized
for issuance and sale to the Underwriters pursuant to
this Agreement and are substantially in the form
contemplated by the Indenture. The Notes have been
duly executed, and when issued and delivered by the
Company and when authenticated by the Trustee
pursuant to the provisions of this Agreement and the
Indenture, respectively, against payment therefor
as provided herein and in the Registration Statement,
will have been duly executed and issued and will
constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with
their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and
general equitable principles (whether enforceability
is considered in a proceeding at law or in equity).
Each of the Base and the Supplemental Indenture has
been duly authorized, executed and delivered by the
Company, are substantially in the form heretofore
delivered to you and, when duly executed and
delivered by the Trustee, will constitute a legal,
valid and binding obligation of the Company
enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and
general equitable principles (whether enforceability
is considered in a proceeding at law or in equity).
(vi) To the best of his knowledge, there
are no holders of securities (debt or equity) of the
Company who by reason of the
19
<PAGE> 20
filing of the Registration Statement under the
Securities Act have the right to request the Company
to register under the Securities Act securities held
by them.
(vii) The Principal Subsidiaries have been
duly incorporated and are validly existing as
corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which
their respective ownership or lease of property or
the conduct of their respective businesses requires
such qualification and have all corporate power and
authority necessary to own, lease, or operate their
respective properties and conduct the businesses in
which they are engaged as described or incorporated
by reference in the Prospectus; except where the
failure to so qualify would not have a material
adverse effect on the consolidated financial
position, stockholders' equity, results of operations
or business of the Company and its subsidiaries taken
as a whole. All of the issued and outstanding
capital stock of each Principal Subsidiary has been
duly authorized and validly issued, is fully paid and
nonassessable, and except as described in the
Prospectus or in documents incorporated therein by
reference and except for restrictions on transfers
provided (i) under insurance or insurance holding
company laws or regulations and (ii) under federal
and state securities laws.
(viii) This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) The Registration Statement is
effective under the Securities Act and, to the best
of his knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued under the
20
<PAGE> 21
Securities Act or proceedings therefor initiated or
threatened by the Commission.
(x) To the best of his knowledge, there
are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed
therein, and all pending legal or governmental
proceedings to which the Company or any subsidiary is
a party or to which any of their property is subject
which are not described in the Registration Statement
or documents incorporated by reference therein,
excluding ordinary routine litigation incidental to
the Company's business, are not material to the
Company and its subsidiaries taken as a whole.
(xi) The information in the Base
Prospectus under the heading "Description of Debt
Securities" and in the Prospectus Supplement under
"Description of the Notes" to the extent that they
constitute matters of law, summaries of legal
matters, documents or proceedings, or legal
conclusions, have been reviewed by him and is correct
in all material respects.
(xii) To the best of his knowledge, there
are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments
required to be described or referred to in the
Registration Statement or to be filed as exhibits
thereto other than those described or referred to
therein or filed or incorporated by reference as
exhibits thereto, except for this Agreement, the Base
Indenture and the Supplemental Indenture all of which
will be filed as exhibits to a Form 8-K to be filed
by the Company prior to the Closing Date, the
descriptions thereof or references thereto are
correct, and no material default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained
21
<PAGE> 22
in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument so described,
referred to, filed or incorporated by reference.
(xiii) No authorization, approval, consent
or order of any court or governmental agency is
required in connection with the sale of the Notes to
the Underwriters, except such as may be required
under the Securities Act, the Rules and Regulations,
the Trust Indenture Act, the rules and regulations
thereunder or state securities laws; and to the best
of his knowledge, the execution and delivery of this
Agreement and the Indenture, including the issuance
and delivery of the Notes, and the consummation of
the transactions contemplated herein and therein do
not and will not conflict with or constitute a breach
of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon
any property or assets of the Company (except for the
liens provided for in the Indenture) or any of the
Principal Subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the
Company or any of them is a party or by which it or
any of them may be bound, or to which any of the
property or assets of the Company or any of them is
subject, except for any such conflict, violation,
breach or default in any lien, charge, claim or
encumbrance which, individually or in the aggregate,
would not have a material adverse effect on the
consolidated financial position, stockholders'
equity, results of operations or business of the
Company and its subsidiaries taken as a whole, nor
will such action result in any violation of the
provisions of the charter or by-laws of the Company,
or any applicable law or administrative regulation or
administrative or court decree applicable by its
terms to the Company.
22
<PAGE> 23
(e) Donovan Leisure Newton & Irvine shall have furnished
to the Underwriters its favorable opinion, as counsel for the Company,
addressed to the Underwriters and dated such Closing Date, in form and
substance satisfactory to counsel for the Underwriters:
(i) The Company is duly incorporated and
validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to enter into and perform its obligations
under this Agreement and the Indenture.
(iii) The Notes have been duly authorized
for issuance and sale to the Underwriters pursuant to
this Agreement and are substantially in the form
contemplated by the Indenture. The Notes have been
duly executed by the Company, and when issued and
delivered by the Company and paid for by the
Underwriters as contemplated by this Agreement and
the Registration Statement and authenticated by the
Trustee, will constitute a valid and binding
obligation of the Company entitled to the benefits of
the Indenture and enforceable against the Company in
accordance with its terms, except as subject to the
effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to
creditors' rights generally and general equitable
principles (whether considered in a proceeding at law
or in equity). Each of the Base and the Supplemen-
tal Indenture has been duly authorized, executed and
delivered by the Company, are substantially in the
form heretofore delivered to you and, when duly
executed and delivered by the Trustee, will
constitute a legal, valid and binding obligation of
the Company enforceable against the Company in
accordance with its terms, subject to the effects of
bank-
23
<PAGE> 24
ruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors'
rights generally and general equitable principles
(whether in a proceeding at law or in equity).
(iv) This Agreement has been duly
authorized, executed and delivered by the Company.
(v) The Registration Statement is
effective under the Securities Act and, to the best
of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has
been issued under the Securities Act or proceedings
therefor initiated nor has such counsel been advised
by the Commission that such proceedings are
threatened by the Commission.
(vi) At the time the Registration
Statement became effective and at the Closing Date,
the Registration Statement (other than the financial
statements and supporting schedules and any other
financial data included or incorporated by reference
therein, as to which no opinion need be rendered) and
the Statement of Eligibility and Qualification of the
Trustee on Form T-1 filed with the Commission
complied as to form in all material respects with the
applicable requirements of the Securities Act, the
Rules and Regulations, the Trust Indenture Act and
the rules and regulations thereunder.
(vii) The Notes conform in all material
respects to the description thereof contained in the
Prospectus.
(viii) To the best knowledge of such
counsel, no authorization, approval, consent or order
of any court or governmental agency is required in
connection with the sale of the Notes to the
Underwriters,
24
<PAGE> 25
except such as may be required under the Securities
Act, the Rules and Regulations, the Trust Indenture
Act, the rules and regulations thereunder or state
securities laws; and to the best of such counsel's
knowledge, the execution and delivery of this
Agreement and the Indenture, including the issuance
and delivery of the Notes, and the consummation of
the transactions contemplated herein and therein do
not and will not conflict with or constitute a breach
of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon
any property or assets of the Company (except for the
liens provided for in the Indenture) pursuant to, the
9 1/8% Senior Notes due 2002 and the Loan Agreement
(assuming payment of the Loan Agreement
simultaneously), except for any such conflict,
violation, breach or default in any lien, charge,
claim or encumbrance which, individually or in the
aggregate, would not have a material adverse effect
on the consolidated financial position, stockholders'
equity, results of operations or business of the
Company and its Principal Subsidiaries taken as a
whole, nor will such action result in any violation
of the provisions of the charter or by-laws of the
Company, or any applicable law or administrative
regulation or administrative or court decree known to
such counsel to be applicable by its terms to the
Company.
(f) The Underwriters shall have received from
Skadden, Arps, Slate, Meagher & Flom, counsel for the
Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the issuance and sale of the Notes, the
Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to
pass upon such matters.
25
<PAGE> 26
In rendering their opinions required by subsections (d), (e),
and (f), respectively, of this section, Michael P. Maloney,
Donovan Leisure Newton & Irvine and Skadden, Arps, Slate,
Meagher & Flom may state that their opinions are limited to
matters governed by the federal laws of the United States of
America, the laws of "the State of New York" and "the General
Corporation Law of the State of Delaware" and that such
counsel is not admitted in "the State of Delaware" if such
counsel is not so admitted and, in the case of Donovan Leisure
Newton & Irvine, that such counsel does not opine as to
insurance laws. In rendering his opinion set forth in
subsection (d), Michael P. Maloney may rely on such opinions
of counsel as he may reasonably request, provided that such
counsel is satisfactory to counsel for the Underwriters and
that copies of such opinions are attached to his opinion.
Michael P. Maloney shall also have furnished to the
Underwriters a separate written statements, addressed to the
Underwriters and dated such Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that
(x) Michael P. Maloney has acted as General Counsel and
Donovan Leisure Newton & Irvine has acted as counsel to the
Company on a regular basis (although the Company is also
represented with respect to certain other matters, by other
outside counsel), and such respective counsel have acted as
counsel to the Company in connection with the preparation of
the Registration Statement, and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead
them to believe that the Registration Statement (other than
financial statements and supporting schedules and any other
financial data included or incorporated by reference therein),
as of the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light
26
<PAGE> 27
of the circumstances under which they were made, not
misleading or any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such
incorporated document made by the Company prior to such
Closing Date, when they were filed with the Commission
contained, in the case of a registration statement which
became effective under the Securities Act, any untrue state-
ment of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or, in the case of
other documents which were filed under the Exchange Act with
the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect
that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus except for the
statements made in the Prospectus under the caption
"Description of the Notes" and "Description of Debt
Securities" insofar as such statements relate to the Notes and
concern legal matters.
Donovan Leisure Newton & Irvine shall
similarly have furnished to the Underwriters a separate
written statement, addressed to the Underwriters and dated the
Closing Date, to effect that it has participated in
conferences with officers and other representatives of the
Company, representatives of the independent accountants for
the Company, representatives of the Underwriters and of their
legal counsel at which the contents of the Registration
Statement and the Prospectus and related matters were
discussed, and, although such counsel is not passing upon, and
does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus and has not made any
independent check or verification
27
<PAGE> 28
thereof, on the basis of the foregoing (relying as to
materiality upon the opinions of officers and other
representatives of the Company), nothing has come to such
counsel's attention that would lead them to believe that the
Registration Statement (including the Rule 430A Information)
at the time it became effective or at the Closing Date,
contained an untrue statement of a material fact or omitted to
state a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(including the Rule 430A Information) at the Closing Date,
included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that
such counsel need not express any belief with respect to the
financial statements and related schedules or other financial
or statistical data included or incorporated by reference in
the Registration Statement or the Prospectus or with respect
to the Statement of Eligibility and Qualification of Form T-1
of the Trustee or as to matters of insurance law or any
documents of GNC incorporated by reference therein).
(g) At the time of execution of this Agreement,
the Underwriters shall have received from Deloitte & Touche
LLP, a letter, in form and substance satisfactory to the
Underwriters, addressed to the Underwriters and dated the date
hereof (i) confirming that they are independent public
accountants with respect to the Company and its subsidiaries
and GNC within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) it is their opinion that the financial
statements and supporting schedules incorporated in the
Registration Statement and covered by their opinions therein,
including the financial statements and supporting schedules of
GNC and their opinion
28
<PAGE> 29
covering such statements and schedules, comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Rules and
Regulations; (iii) based upon limited procedures set forth in
detail in such letter, nothing has come to their attention
which causes them to believe that (A) the unaudited financial
statements and supporting schedules of the Company and its
subsidiaries incorporated in the Registration Statement do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Rules
and Regulations or are not presented in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements incorporated in the Registration Statement, or (B)
at a specified date not more than five days prior to the date
of this Agreement, there has been any change in the capital
stock of the Company or any increase in the long-term debt of
the Company and its subsidiaries or any decrease in
consolidated net assets as compared with the amounts shown in
the March 31, 1995 balance sheet incorporated in the
Registration Statement or, during the period from March 31,
1995 to a specified date not more than five days prior to the
date of this Agreement, there were any decreases, as compared
with the corresponding period in the preceding year, in
consolidated revenues or consolidated net earnings of the
Company and its subsidiaries, except in all instances for
changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may
occur; and (iv) in addition to the examination referred to in
their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated in the Registration Statement and
Prospectus and which are specified by the Underwriters and
have found such amounts, percentages and financial information
to be in agreement with the relevant ac-
29
<PAGE> 30
counting, financial and other records of the Company and its
subsidiaries identified in such letter.
(h) At the Closing Date, counsel for the
Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Notes
as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein
contemplated shall be reasonably satisfactory in form and
substance to the Underwriters and their counsel.
(i) With respect to the letter of Deloitte &
Touche LLP referred to in the preceding paragraph and
delivered to the Underwriters concurrently with the execution
of this Agreement (the "initial letter"), the Company shall
have furnished to the Underwriters a letter (the "bring-down
letter") of such accountants, addressed to the Underwriters
and dated such Closing Date (i) confirming that they are
independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than three
days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
30
<PAGE> 31
(j) At the Closing Date, there shall not have
been, since the date hereof or since the respective dates as
of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the
consolidated financial condition, stockholders' equity,
results of operations or business of the Company and its
subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, and the Company shall have
furnished to the Underwriters a certificate of the Chairman of
the Board, the President or a Vice President of the Company
and of the chief financial officer or chief accounting officer
of the Company, dated as of the Closing Date, stating that:
(i) There has been no such material
adverse change;
(ii) the representations, warranties and
agreements of the Company in Section 1 are true and
correct with the same force and effect as though
expressly made at and as of the Closing Date; the
Company has complied in all material respects with
all agreements and satisfied all conditions on its
part to be performed by it at or prior to the Closing
Date;
(iii) in their opinion (A) as of the
Effective Date, the Registration Statement did not
include any untrue statement of a material fact and
did not omit to state a material fact required to be
stated therein or necessary to make the statements
therein, (in the case of the Prospectus, in light of
the circumstances in which they were made), and (B)
since the Effective Date no event has occurred which
should have been set forth or incorporated by
reference in a supplement or amendment to the
Registration Statement or the Prospectus which has
not been so set forth; and
(iv) no stop order suspending the
effectiveness of the Registration Statement
31
<PAGE> 32
has been issued and no proceedings for that purpose
have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(k) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus any
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated
in the Prospectus or (ii) since such date there shall not have
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment
of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Notes being delivered on such
Closing Date on the terms and in the manner contemplated in
the Prospectus.
(l) Subsequent to the execution and delivery of
this Agreement and prior to Closing Time, (i) no downgrading
shall have occurred in the rating accorded the Company's
securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and
(ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities.
(m) Subsequent to the execution and delivery of
this Agreement there shall not have
32
<PAGE> 33
occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic,
political or financial conditions (or the effect of
international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of
a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public
offering or delivery of the Notes being delivered on such
Closing Date on the terms and in the manner contemplated in
the Prospectus.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time at or prior
to Closing Date, and such termination shall be without liability of any party
to any other party except as provided in Section 6 hereof. Notwithstanding any
such termination, the provisions of Sections 1, 5, and 8 shall remain in
effect.
8. Indemnification and Contribution.
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<PAGE> 34
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Securities Act, from and against any and all losses, claims,
damages or liabilities, joint or several, or any action in respect thereof
(including, but not limited to any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Notes), to which that
Underwriter, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of, or bound upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading, or in the
case of the Prospectus in light of the circumstances in which they were made,
and shall reimburse each Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such losses, claims, damages, liabilities or actions as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such losses, claims, damages,
liabilities or actions arise out of, or are based upon, any untrue statement or
alleged untrue statement or omission or alleged omission in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Underwriters by or on behalf of any Underwriter specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter or to any officer,
employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of
its directors, and each person, if any, who controls the Company within the
meaning of the
34
<PAGE> 35
Securities Act, from and against any losses, claims, damages or liabilities,
joint or several, or any actions in respect thereof, to which the Company or
any such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of, or are based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Underwriter
furnished to the Company through the Underwriters by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse the Company
and any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such losses, claims, damages, liabilities or actions as
such expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify
35
<PAGE> 36
the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Underwriters shall, if they shall be advised by counsel in writing that
defense counsel selected by the Company has a conflict of interest, the
Underwriters shall have the right to employ counsel to represent jointly the
Underwriters and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 8 if, in the reasonable judgment of the
Underwriters, it is advisable for the Underwriters and those Underwriters,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not
be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
36
<PAGE> 37
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any losses, claims,
damages or liabilities, or any actions in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities, or actions in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which in such losses,
claims, damages or liabilities, or actions in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Notes purchased under this Agreement (before deducting
expenses) received by the Company on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Notes purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Notes under this Agreement in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
37
<PAGE> 38
liabilities, or actions in respect thereof, referred to above in this Section
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm that the
statements with respect to the public offering of the Notes by the Underwriters
set forth on the cover page of, and the concession and reallowance appearing
under the caption "Underwriting" in, the Prospectus are correct and constitute
information concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. Defaulting Underwriters. If on the Closing Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Notes which the defaulting Underwriter agreed but failed to
purchase on such Closing Date in the respective proportions to the amount of
Notes set opposite the names of each remaining non-defaulting Underwriter in
Schedule I hereto bears to the amount of Notes set opposite the names of all
the remaining non-defaulting Underwriters in Schedule I hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any of the Notes on such Closing Date if the total number of Notes
which the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds 21% of the total amount of Notes of the Notes be purchased
on such
38
<PAGE> 39
Closing Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 127% of the amount of Notes which it agreed to
purchase on such Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Underwriters who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Notes to be purchased on such Closing
Date. If the remaining Underwriters or other underwriters satisfactory to the
Underwriters do not elect to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Closing Date,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule I hereto who, pursuant to this Section 9,
purchases Notes which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Notes of a defaulting or withdrawing Underwriter, either the Underwriters or
the Company may postpone the Closing Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters
hereunder may be terminated by the Underwriters by notice given to and received
by the Company prior to delivery of and payment for the Notes if, prior to that
time, any of the events described in Sections 7(m) shall have occurred or if
the Underwriters shall decline to purchase the Notes for any reason permitted
under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Notes for delivery to
39
<PAGE> 40
the Underwriters by reason of any refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Notes, and upon demand the Company
shall pay the full amount thereof to the Underwriters. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account expenses.
12. Notices, etc. All statements, requests, notices and
agreements hereunder in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to Lehman
Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant
to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Lehman Brothers Inc., World Financial Center,
10th Floor, New York, NY 10285;
(b) if to the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention:
Vincent T. Papa, Vice President and Treasurer; (Fax:(212)
581-7261);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its acceptance telex to the Underwriters, which
address will be supplied to any other party hereto by the Underwriters upon
request. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Company shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf
of the Underwriters by Lehman Brothers Inc.
40
<PAGE> 41
13. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 8(b) of this Agreement shall be deemed to be
for the benefit of the directors of the Company, officers of the Company and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Notes and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them for a period of six years from the Closing Date.
15. Definition of the Terms "Business Day" and
"Subsidiary". For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange, Inc. is open for trading and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
16. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
41
<PAGE> 42
18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
42
<PAGE> 43
If the foregoing correctly sets forth the agreement between
the Company and the Underwriters please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
ORION CAPITAL CORPORATION
By /s/ Vincent T. Papa
------------------------------
Name: Vincent T. Papa
Title: Vice President
and Treasurer
43
<PAGE> 44
Accepted:
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
MERRILL LYNCH, PIERCE, FENNER & SMITH
Incorporated
By /s/ Robert H. Swindell
------------------------------
LEHMAN BROTHERS
For itself and on behalf of the several Underwriters
44
<PAGE> 45
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount
of Notes to be
Purchased
---------
<S> <C>
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . $ 34,000,000
Donaldson, Lufkin & Jenrette . . . . . . . . . . . . . . . . . . . . 33,000,000
Securities Corporation
Merrill Lynch, Pierce, Fenner & Smith . . . . . . . . . . . . . . . . 33,000,000
Incorporated
------------------------------ ------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
============
</TABLE>
<PAGE> 46
SCHEDULE II
Principal Subsidiaries
Security Insurance Company of Hartford
The Connecticut Indemnity Company
<PAGE> 1
ORION CAPITAL CORPORATION
TO
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
TRUSTEE
____________________
INDENTURE
Dated as of July 17, 1995
____________________
Senior Debt Securities
<PAGE> 2
ORION CAPITAL CORPORATION
Reconciliation and tie between certain Sections of
this Indenture, dated as of July 17, 1995, and
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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 . . . . . . . . . . . . . . . . . . . . . . 5
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 5
<TABLE>
<S> <C> <C>
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and Security
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . 10
Section 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . 13
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 114. Personal Immunity from Liability
for Incorporators, Stockholders,
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO
-----------
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 6
<TABLE>
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Section 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 204. Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . 26
Section 205. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 206. Form of Conversion Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE THREE
-------------
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . 29
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE FOUR
------------
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 402. Application of Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE FIVE
------------
REMEDIES
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 7
<TABLE>
<S> <C> <C>
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Convert . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . 52
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE SIX
-----------
THE TRUSTEE
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 54
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE SEVEN
-------------
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 8
<TABLE>
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Section 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE EIGHT
-------------
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE NINE
------------
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 902. Supplemental Indentures With Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 74
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 905. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 906. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 75
Section 907. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 908. Waiver of Compliance by Holders . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE TEN
-----------
COVENANTS
Section 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1003. Money for Securities Payments to Be
Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1005. Limitations on Liens on Common Stock of
Principal Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 9
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<TABLE>
<S> <C> <C>
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 80
Section 1103. Selection by Trustee of Securities to
Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . 82
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE TWELVE
--------------
CONVERSION OF SECURITIES
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1202. Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1203. No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 1204. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 1205. Notice of Certain Corporate
Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 1206. Reservation of Shares of Common
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 1207. Payment of Certain Taxes Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 1208. Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 1209. Effect of Consolidation or Merger
on Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 1210. Duties of Trustee Regarding
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 1211. Repayment of Certain Funds Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE THIRTEEN
----------------
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 10
<TABLE>
<S> <C> <C>
Section 1304. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 1305. Deposited Money and U.S. Government
Obligations to be Held In Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
ARTICLE FOURTEEN
----------------
SINKING FUNDS
Section 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 1402. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 1403. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 11
INDENTURE, dated as of July 17, 1995, between ORION CAPITAL
CORPORATION, a Delaware corporation (herein called the "Company"), having its
principal office at 600 Fifth Avenue, New York, New York 10020, 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;
<PAGE> 12
(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.
-2-
<PAGE> 13
"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
-3-
<PAGE> 14
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
-4-
<PAGE> 15
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) and Section 501(5).
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<PAGE> 16
"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
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<PAGE> 17
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;
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<PAGE> 18
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", with respect to the Trustee, means any
officer in its Corporate Trust Department or any officer customarily performing
functions similar to those performed by the persons who at the time shall be
such officers or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with a particular subject.
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<PAGE> 19
"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 1939 is amended
after such
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<PAGE> 20
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
contained 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.
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<PAGE> 21
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which its certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate, opinion or representation by an accountant or firm of accountants
in the employ of the Company, unless such officer or counsel, as the case may
be, knows, or in the exercise of reasonable care should know, that the
certificate, opinion or representation with respect to such accounting matters
upon which its certificate, statement or opinion may be based is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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<PAGE> 22
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,
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<PAGE> 23
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 deemed 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
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<PAGE> 24
(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.
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.
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<PAGE> 25
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.
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<PAGE> 26
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,
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<PAGE> 27
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
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<PAGE> 28
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
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<PAGE> 29
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:
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<PAGE> 30
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,
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<PAGE> 31
<TABLE>
<S> <C> <C> <C>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
</TABLE>
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,
<TABLE>
<S> <C> <C>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
</TABLE>
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 is on or prior to such
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<PAGE> 32
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 that permit the
Company to elect either (1) to defease and be discharged from the entire
indebtedness of this Security or (2) to be released from its obligations under
certain restrictive covenants and Events of Default with respect to this
Security, in each case upon payment in full of the Securities and 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
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<PAGE> 33
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 convertible 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,
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<PAGE> 34
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
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<PAGE> 35
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.
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<PAGE> 36
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.
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<PAGE> 37
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 of 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.
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<PAGE> 38
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 registered
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 Identifying Number
----------------------------
(Name)
----------------------------
(Address)
----------------------------
Please print Name and Address
(including zip code number)
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<PAGE> 39
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;
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<PAGE> 40
(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
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<PAGE> 41
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.
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<PAGE> 42
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
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<PAGE> 43
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 generally 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.
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<PAGE> 44
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 Securities 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
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<PAGE> 45
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.
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<PAGE> 46
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 Securities 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
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<PAGE> 47
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
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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 or within the grace period set forth in Section 501(1) (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
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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
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(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 cancellation 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.
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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
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(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, 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 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.
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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
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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 $20,000,000,
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
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or cured by the Company or Principal Subsidiary, 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; 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
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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 or event which with the giving of notice or
lapse of time or both would become an Event of Default under clauses (4), (5),
(6) and (7) hereof within 30 days of the knowledge thereof by the Company,
provided that in the case of clause (4) no such notice will be required to be
given to the Company if such default shall be cured by the Company within such
30 day period.
Subject to the provisions of Sections 601 and 602, the Trustee
shall not be charged with knowledge of any Event of Default unless written
notice thereof shall have been given to the Trustee by the Company, the Paying
Agent of that series (provided that no such notice shall be required to be
given if the Trustee acts as Paying Agent of such series), or with respect to
an Event of Default under clause (5) of this Section by the holder of any such
indebtedness or an agent of the holder of any such indebtedness or by the
trustee then acting under any such indenture or other instrument under which
such default shall have occurred, or by any Holder of the Outstanding
Securities of that series or an agent of any Holder.
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
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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 expenses
as are a result of negligence or bad faith on the
part of the Trustee;
and
(2) all Events of Default with respect to Securities
of that series, other than the non- payment of the principal
of and interest, if any, on the Securities
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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,
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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
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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 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.
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
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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
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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 is 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.
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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 not less than 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
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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.
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(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.
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(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 of 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 or in the payment of any sinking fund
installment, 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.
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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,
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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.
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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.
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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 any 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
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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 thereof 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.
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(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
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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
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer the rights, powers, trust and duties of the retiring
Trustee with respect to the 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
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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).
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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 purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or
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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
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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.
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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.
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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,
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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:
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(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
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
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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
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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.
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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.
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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.
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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 presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one
or more other offices or agencies where the 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.
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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
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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 of the Company 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
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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.
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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
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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,
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(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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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 principal 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
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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
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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
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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.
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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
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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
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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.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ORION CAPITAL CORPORATION
By /s/ Michael P. Maloney
---------------------------
Michael P. Maloney
Vice President, General
Counsel and Secretary
Attest:
/s/ Raymond J. Schuyler
- -----------------------------
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Trustee
By /s/ E. Decker Adams
---------------------------
E. Decker Adams
Vice President
Attest:
/s/ Carolina D. Altomare
- -----------------------------
Carolina D. Altomare
Assistant Secretary
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<PAGE> 109
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 14th day of July, 1995, before me personally
came Michael P. Maloney, to me known, who, being by me duly sworn,
did depose and say that he is Vice President, General Counsel and Secretary of
ORION CAPITAL CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Sylvia O'Conner
------------------------
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STATE OF Massachusetts )
) ss.:
COUNTY OF Suffolk )
On the 13th day of July, 1995, before me personally
came E. Decker Adams, to me known, who, being by me duly sworn, did depose and
say that he is Vice President of STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Kim Robak
-------------
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<PAGE> 1
ORION CAPITAL CORPORATION
$100,000,000
7-1/4% Senior Notes Due 2005
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 17, 1995
Supplementing the Indenture
Dated as of July 17, 1995
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION
TRUSTEE
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental
Indenture") dated as of July 17, 1995 between Orion Capital Corporation, a
Delaware corporation (the "Company"), 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 (the
"Trustee").
W I T N E S S E T H:
WHEREAS, there has been executed and delivered to the
Trustee an Indenture dated as of July 17, 1995 (the "Indenture") providing for
the issuance of senior debt securities of the Company; and
WHEREAS, the Company now wishes to provide for the
issuance thereunder of $100,000,000 aggregate principal amount of 7-1/4% Senior
Notes due 2005 (the "Notes") of the Company (referred to in the Indenture and
herein as the "Securities"); and
WHEREAS, Section 301 of the Indenture requires that
the Company establish the terms of any series of Securities to be issued under
the Indenture as provided therein; and
WHEREAS, Section 201 of the Indenture requires that
the Securities shall have the form provided therein; and
WHEREAS, Section 901 of the Indenture provides that
the Company and the Trustee may, without the consent of any Holder of
Securities, enter into a supplemental indenture to establish the form or terms
of the Securities of any series as permitted by Sections 201 and 301 thereof
and with respect to certain other matters; and
WHEREAS, the Company has determined that this First
Supplemental Indenture complies with said Section 901; and
WHEREAS, all conditions precedent set forth in the
Indenture relating to the issuance of the Securities and this First
Supplemental Indenture have been complied with; and
WHEREAS, all acts and proceedings required by law, by
the Indenture and by the Restated Certificate of Incorporation of the Company
to constitute this First Supplemental Indenture a valid and binding agreement
for the
<PAGE> 3
uses and purposes set forth herein, in accordance with its terms, have been
done and taken, and the execution and delivery of this First Supplemental
Indenture have been in all respects duly authorized by the Company; and
WHEREAS, the foregoing recitals are made as
representations or statements of fact by the Company and not by the Trustee;
NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and the Trustee hereby agree as follows:
1. For all purposes of this First Supplemental
Indenture, except as otherwise herein expressly provided or unless the context
otherwise requires: (i) the terms and expressions used herein shall have the
same meanings as corresponding terms and expressions used in the Indenture; and
(ii) the words "herein," "hereof" and "hereby" and other words of similar
import used in this First Supplemental Indenture refer to this First
Supplemental Indenture as a whole and not to any particular section hereof.
2. The Trustee accepts the amendment of the
Indenture effected by this First Supplemental Indenture and agrees to execute
the trust created by the Indenture, as hereby amended, but only upon the terms
and conditions set forth in the Indenture, as hereby amended, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and
limit its liabilities in the performance of the trust created by the Indenture,
as hereby amended, and, without limiting the generality of the foregoing, the
Trustee has no responsibility for the correctness of the recitals of fact
herein contained which shall be taken as the statements of the Company and the
Trustee makes no representations as to the validity or sufficiency of this
First Supplemental Indenture and shall incur no liability or responsibility in
respect of the validity thereof.
3. The Company hereby covenants and agrees as
follows:
(a) The Securities shall be issued in
accordance with the following terms and conditions:
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<PAGE> 4
(i) the title of the Securities of this
series is the "7-1/4% Senior Notes due 2005";
(ii) the Securities shall be limited to
the aggregate principal amount of One Hundred Million
Dollars ($100,000,000) (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 under the
Indenture);
(iii) the principal of the Securities
shall be payable on July 15, 2005;
(iv) the Securities shall bear interest
at the rate of 7-1/4% per annum, payable on January
15 and July 15, commencing on January 15, 1996,
provided that interest shall accrue for the period
terminating on January 15, 1996 from July 17, 1995;
(v) the Regular Record Date for the
Securities shall be the close of business on the last
day of the month preceding such interest payment
date;
(vi) except as provided in subparagraph
(x) hereof, the Securities shall not be secured
pursuant to Section 901(6);
(vii) the principal of and any premium
and interest on the Securities shall be payable at
the offices of the Trustee at c/o State Street Bank
Trust Company of Connecticut, National Association,
225 Franklin Street, Boston Massachusetts 02110, or
at such other office of the Trustee as may be
designated in accordance with the provisions of the
Indenture;
(viii) the Securities shall not be
redeemable, in whole or in part, at the option of the
Company or the Holder, pursuant to a sinking fund or
otherwise;
(ix) the Securities shall be issuable
in the form of one or more Global Securities
(referred to as the "Global Security") in the name of
The Depository Trust Company, as Depositary (the
"Depositary"), or its nominee, in book-entry form
only. The Global Security
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<PAGE> 5
shall be deposited with, or on behalf of, the
Depositary and registered in the name of a nominee
of the Depositary. Except under circumstances
described below and in accordance with Section 305 of
the Indenture, the Notes will not be issuable in
definitive form. Upon the issuance of the Global
Security, the Depositary will credit on its
book-entry registration and transfer system the
accounts of persons designated with the respective
principal amounts of the Notes represented by the
Global Security. Ownership of beneficial interests
in the Global Security will be limited to persons
that have accounts with the Depositary or its nominee
("participants") or persons that may hold interest
through participants. Ownership of beneficial
interests in the Global Security will be shown on,
and the transfer of that ownership will be effected
only through, records maintained by the Depositary or
its nominee (with respect to interests of persons
other than participants). So long as the Depositary
or its nominee is the registered owner of the Global
Security, the Depositary or such nominee, as the case
may be, will be considered the sole owner or holder
of the Notes represented by the Global Security for
all purposes under the Indenture. Except as provided
below, owners of beneficial interests in the Global
Security will not be entitled to have Notes
represented by the Global Security registered in
their names, will not receive or be entitled to
receive physical delivery of Notes in definitive form
and will not be considered the owners or holders
thereof under the Indenture. Principal and interest
payments on Notes registered in the name of the
Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the
registered owner of the Global Security. None of the
Company, the Trustee, any paying agent or the
registrar for the Notes will have any responsibility
or liability for any aspect of the records relating
to or payments made on account of beneficial
interests in the Global Security or for maintaining,
supervising or reviewing any records relating to such
beneficial interests. If the Depositary is at any
time unwilling or unable to continue as Depositary
and a successor Depositary is not appointed by the
Company within 90 days, the Company shall issue Notes
in definitive form in
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<PAGE> 6
exchange for the entire Global Security. In
addition, the Company may at any time and in its sole
discretion determine not to have the Notes
represented by a Global Security and, in such event,
will issue Notes in definitive form in exchange for
the entire Global Security. In any such instance, an
owner of a beneficial interest in the Global Security
shall be entitled to physical delivery in definitive
form of Notes represented by the Global Security
equal in principal amount to such beneficial interest
and to have such Notes registered in its name. Notes
so issued in definitive form will be issued as
registered Notes, without coupons, in denominations
of $1,000 and integral multiples thereof, unless
otherwise specified by the Company.
(x) in addition to each covenant or
warranty included for the benefit of Securities in
the Indenture, including the covenant set forth in
Section 1005, for so long as the Company's 9-1/8%
Senior Notes are outstanding, the Securities shall be
entitled to be equally and ratably secured with the
9-1/8% Senior Notes at any time when those notes are,
in turn, entitled to be equally and ratably secured
under Section 3.07 of the indenture relating thereto.
(b) The Global Security shall be substantially
in the form of the Notes annexed as Exhibit 1 hereto
and made a part hereof; in the event that definitive
certificates for the Notes are issued as provided in
paragraph (a)(ix) hereof, such certificates shall be
substantially in the form of Exhibit 1 with such
appropriate changes as shall be provided in
accordance with the Indenture, as the same may be
supplemented.
4. Except as expressly amended hereby the Indenture
is in all respects ratified and confirmed, and all the terms, conditions and
provisions thereof shall remain in full force and effect.
5. This First Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
6. This First Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall
be deemed to be an original, and all of such counterparts shall together
constitute one and the same instrument.
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<PAGE> 7
7. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused
this First Supplemental Indenture to be duly executed, and their respective
seals to be hereunto affixed and attested, all as of the day and year first
above written.
ORION CAPITAL CORPORATION,
a Delaware corporation
/s/ Michael P. Maloney
---------------------------
By: Michael P. Maloney
[SEAL] Title: Vice President, General Counsel
and Secretary
Attest:
/s/ Raymond J. Schuyler
- -------------------------
By: Raymond J. Schuyler
Title: Vice President -
Investments
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a
national banking association,
Trustee
/s/ E. Decker Adams
-----------------------------
By: E. Decker Adams
[SEAL] Title: Vice President
Attest:
/s/ Carolina D. Altomare
- --------------------------
By: Carolina D. Altomare
Title: Assistant Secretary
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<PAGE> 1
EXHIBIT 1
[FORM OF GLOBAL BOOK-ENTRY NOTE] CUSIP NO.
686268-AE3
ORION CAPITAL CORPORATION
7-1/4% Senior Notes Due 2005
No._____ $______
_______ __, 199_
FOR VALUE RECEIVED, ORION CAPITAL CORPORATION, a Delaware
corporation (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), hereby promises to pay to
__________________________________________________, or registered assigns, upon
presentation the principal sum of ________________________ Dollars
($_______________) on July 15, 2005 and to pay interest on the unpaid principal
amount thereof from July 17, 1995 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on January
15 and July 15 in each year, commencing January 15, 1996 at the rate of 7 1/4%
per annum, until the principal hereof is paid or made available for payment.
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 payment, which shall be the close of business on the last day of the
month preceding such interest payment date.
Subject to the provisions of Sections 204 and 305 of the
Indenture, this Security is a Global Security within the meaning of the
Indenture herein 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.
<PAGE> 2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office of the Trustee, c/o State Street
Bank and Trust Company, 225 Franklin Street, Boston, Massachusetts 02110 (or at
such other office of the Trustee as may be designated in accordance with the
Indenture), 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, in
immediately available funds.
Ownership of interests in the Global Security will be shown
on, and the transfer thereof will be effected only through, records maintained
by the Depositary or its nominee for such Global Security and on the records of
participants. Except as otherwise described in the Indenture, as the same may
be supplemented, owners of beneficial interests in the Global Security will not
be entitled to receive Notes in definitive form and will not be considered the
holders thereof.
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.
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<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
ORION CAPITAL CORPORATION
By
----------------------
Attest:
- -------------------------------
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<PAGE> 4
[Form of Reverse of Security.]
This Note 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 July 17, 1995, as the same may be
amended by supplemental indenture (herein called the "Indenture"), between the
Company and State Street Bank and Trust Company of Connecticut, National
Association, 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 $100,000,000.
The Indenture contains provisions that permit the Company to
elect either (1) to defease and be discharged from the entire indebtedness of
this Security or (2) to be released from certain restrictive covenants and
Events of Default with respect to this Security, in each case upon payment in
full of the Securities and compliance with certain conditions set forth in the
Indenture.
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.
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 not
less than 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 contains provisions permitting 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
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<PAGE> 5
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 also 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 $1,000 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.
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<PAGE> 6
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.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused "CUSIP"
numbers to be printed on the Securities as convenience to the Holders of such
securities. No representation is made as to the correctness or accuracy of
such CUSIP numbers as printed on the securities, and reliance may be placed
only on the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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<PAGE> 7
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------------
As Trustee
By
-------------------------------
Authorized Officer
Dated:
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