<PAGE>
As filed with the Securities and Exchange Commission on May 15, 2000
Registration Statement No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
GE Global Insurance Holding Corporation
(Exact name of Registrant as specified in its charter)
--------------
DELAWARE 95-3435367
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5200 Metcalf
Overland Park, Kansas 66201
(913) 676-5200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
--------------
JOHN M. CONNELLY, ESQ. GLENN J. GOGGINS, ESQ.
Senior Vice President, General Counsel Associate General Counsel
and Secretary General Electric Capital Services, Inc.
GE Global Insurance Holding Corporation 260 Long Ridge Road
5200 Metcalf Stamford, Connecticut 06927
Overland Park, Kansas 66201 (203) 357-4000
(913) 676-5200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
GARY I. HOROWITZ, ESQ. FRANCIS J. MORISON, ESQ.
Simpson Thacher & Bartlett Davis Polk & Wardwell
425 Lexington Avenue 450 Lexington Avenue
New York, New York 10017-3954 New York, New York 10017
(212) 455-2000 (212) 450-4000
--------------
Approximate date of commencement of proposed sale to the public: From time
to time after the Registration Statement becomes effective as determined by
market conditions and other factors.
--------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of Each Proposed Maximum
Class of Proposed Maximum Aggregate Amount of
Securities to be Amount to be Aggregate Price Offering Price Registration
Registered Registered (1) Per Security (2) (1) (2) Fee
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.. $2,000,000,000 100% $2,000,000,000 $528,000
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) The initial public offering price of any Debt Securities denominated in any
foreign currencies or currency units shall be the U.S. dollar equivalent
thereof based on the prevailing exchange rates at the respective times such
Debt Securities are first offered. For Debt Securities issued with an
original issue discount, the amount to be registered is calculated as the
initial accreted value of such Debt Securities.
(2) Estimated solely for the purpose of calculating the registration fee which
has been calculated in accordance with Rule 457(o) under the Securities Act
of 1933, as amended (the "Securities Act"), and reflects the maximum
offering price of Debt Securities that may be issued rather than the
principal amount of any Debt Securities that may be issued at a discount.
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until this Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities Exchange Commission is effective. This Prospectus is not an offer +
+to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion dated May 15, 2000
PROSPECTUS
GE Global Insurance
Holding Corporation
$2,000,000,000
Debt Securities
GE Global Insurance Holding Corporation may offer senior, unsecured debt
securities from time to time.
-----------
We will provide specific terms of these securities in supplements to this
Prospectus. Investing in the Debt Securities involves certain risks. You
should read this Prospectus, particularly the Risk Factors beginning on
page 3, and any supplement carefully before you invest.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon
the adequacy or accuracy of this prospectus. Any representation to the
contrary is a criminal offense.
-----------
May , 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
About This Prospectus....................................................... 2
Where You Can Find More Information......................................... 2
Risk Factors................................................................ 3
The Company................................................................. 5
Ratios of Earnings to Fixed Charges......................................... 5
Use of Proceeds............................................................. 5
Description of Debt Securities.............................................. 5
Plan of Distribution........................................................ 10
Legal Matters............................................................... 10
Experts..................................................................... 11
</TABLE>
----------------
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that we filed with the
Securities and Exchange Commission (the "SEC") utilizing a "shelf" registration
process. Under this shelf process, we may sell the unsecured Debt Securities
described in this Prospectus in one or more offerings up to a total dollar
amount of $2,000,000,000. This Prospectus provides you with a general
description of the Debt Securities we may offer. Each time we sell Debt
Securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this prospectus. You should
read both this Prospectus and any prospectus supplement together with
additional information described below under "Where You Can Find More
Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with the
SEC. You may also read and copy any document we file at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are available to the public over the Internet
at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this Prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the Debt Securities:
. Our Annual Report on Form 10-K for the year ended December 31, 1999; and
. Our Quarterly Report on Form 10-Q for the quarter ended April 1, 2000.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address: William J. Steilen, Vice President and
Controller, GE Global Insurance Holding Corporation, 5200 Metcalf, Overland
Park, Kansas 66201, Telephone: (913) 676-5200.
You should rely only on the information incorporated by reference or
provided in this Prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this Prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
2
<PAGE>
RISK FACTORS
Investing in the Debt Securities involves certain risks. You should
carefully consider the information contained in this Prospectus and the
following factors, among others, before purchasing the Debt Securities.
As a Holding Company, We Depend on Dividends from Our Subsidiaries
We are a holding company and conduct our operations through our direct
operating subsidiaries, Employers Reinsurance Corporation ("ERC"), GE
Reinsurance Corporation ("GE Re") (formerly Kemper Reinsurance Corporation) and
Medical Protective Corporation ("Medical Protective"). We depend on dividends
from ERC, GE Re and Medical Protective to service our debt and meet our other
obligations. The payment of dividends and other payments by ERC, GE Re and
Medical Protective are subject to limitations imposed by the laws of the states
of Missouri, Illinois and Indiana, respectively, where such subsidiaries are
organized and domiciled. Substantially all of our other indirect subsidiaries
are also subject to regulation by various state insurance departments and other
foreign insurance regulators. As a result, our subsidiaries' ability to pay
dividends or make loans or advances to us or any of our other affiliates
without prior regulatory approval is limited by applicable regulations. In
addition, the payment of dividends or other amounts by ERC, GE Re and Medical
Protective or our other insurance subsidiaries that would otherwise be
permitted without regulatory approval may be restricted under some
circumstances.
The Debt Securities Are Subordinated to the Obligations of Our Subsidiaries
We are a non-operating holding company and we conduct our business through
our insurance subsidiaries. The Debt Securities will effectively be
subordinated to the liabilities of our subsidiaries. If any of our subsidiaries
becomes insolvent, or liquidates or reorganizes, our creditors and shareholders
would not have the right to proceed against the subsidiary or cause its
liquidation or bankruptcy under federal or state bankruptcy laws. The insurance
laws of the domicile of the subsidiary would govern such proceedings and the
relevant insurance commissioner would act as the liquidator or rehabilitator
for the subsidiary. The creditors and policyholders of the subsidiary would
receive payment in full from the assets of the subsidiary before we, as a
shareholder, would receive any distribution therefrom.
We May Enter into Transactions Involving Issuance or Assumption of Debt
We will issue the Debt Securities pursuant to an Indenture that does not
limit the amount of Debt Securities or other unsecured, senior debt that we may
issue under the Indenture or pursuant to some other agreement. The Indenture
also does not limit our ability to incur indebtedness or give you protection in
the event that our ultimate parent corporation, the General Electric Company,
as our sole indirect stockholder, causes us to enter into a highly leveraged
transaction, reorganization, restructuring, merger or similar transaction.
Our Liability May Exceed Property and Casualty Loss Reserves
Our reserves for losses and loss adjustment expenses are our estimates of
amounts we will need to pay for reported and unreported claims and related loss
adjustment expenses. Our estimates are based on certain assumptions related to
the ultimate cost to settle such claims. Because of the inherent uncertainty in
estimating reserves for losses and loss adjustment expenses, we cannot assure
you that our ultimate liability will not exceed our reserves and, as a result,
have a material adverse effect on our results of operations or financial
position. We believe, however, that our aggregate reserves are adequate to meet
our future obligations.
Inflation May Have a Significant Impact on Our Loss and Loss Adjustment Expense
Costs on Claims
Our ultimate loss and loss adjustment expense costs on claims that are not
yet settled are increased by the effects of inflation. As a result, changes in
the inflation rate could become a significant factor in determining
3
<PAGE>
appropriate loss reserves as well as reinsurance premium rates. Generally, the
methods we use to estimate our loss reserves and to calculate our rates take
into account the anticipated effects of inflation. However, until claims are
ultimately settled, the full effect of inflation on our results cannot be
known.
The Reinsurance Industry Is Highly Cyclical
The property and casualty reinsurance industry is highly cyclical. Demand
for reinsurance is significantly influenced by the underwriting results of
primary property and casualty insurance companies, the prevailing general
economic conditions, reinsurance premium rates and other variables. Factors
such as volatile and unpredictable developments, including changes in what we
believe is the propensity of courts to grant large awards, natural disasters
and other catastrophic events can significantly affect the reinsurance
industry's cyclical trends and profitability. In addition, fluctuations in
interest rates and other changes in the investment environment which affect
inflationary pressures may tend to affect the size of losses experienced by
ceding primary insurance companies.
Legislative and Regulatory Proposals May Affect Our Business
From time to time, various regulatory and legislative changes are proposed
that may affect reinsurers. A substantial number of states have recently
adopted, or are considering adopting, laws and regulations that, among other
things, limit the ability of primary insurance companies to raise their
premiums or to cancel or not renew existing policies. We cannot predict whether
additional states will adopt any of these laws and regulations, the form in
which these states might adopt any of these laws and regulations, or the
effect, if any, these developments will have on us. In addition, we cannot
predict whether any applicable jurisdictions will adopt legislative proposals
relating to the payment of dividends, whether any such proposals will be
adopted in the future or the effect, if any, any such proposal would have on
us.
Our Foreign Operations Are Regulated by Foreign Authorities
We conduct a portion of our business in foreign countries. The degree of
regulation and supervision in these foreign jurisdictions varies from minimal
in some to stringent in others. The licenses issued by foreign authorities to
our foreign subsidiaries are subject to modification or revocation by such
authorities, and our subsidiaries could be prevented from conducting business
in certain jurisdictions where they currently operate.
We Operate in a Highly Competitive Environment
We operate in a highly competitive environment. Concern about the financial
stability of insurance companies has resulted in emphasis being placed upon
insurance company ratings and there is some competitive advantage for insurance
companies with higher ratings. Both ERC, one of our principal property and
casualty insurance subsidiaries, and its major life insurance subsidiary,
Employers Reassurance Corporation, are rated "A++ (Superior)" by A.M. Best
Company ("A.M. Best"). Our other major direct subsidiaries, GE Re and Medical
Protective, are rated "A (Excellent)" and "A+ (Superior)" by A.M. Best,
respectively. In the area of claims-paying ability, ERC is rated "AAA" by
Standard & Poor's Corporation and "Aaa" by Moody's Investor Services, Inc. Some
of our other subsidiaries are also rated by certain domestic and foreign rating
agencies. Claims-paying ability ratings do not reflect an insurer's ability to
meet non-policy obligations, such as the repayment of indebtedness. In
addition, we cannot give assurance that we will maintain the ratings for ERC or
any of our other subsidiaries. Any downgrade in the ratings of our subsidiaries
could adversely affect our business.
There Is No Prior Public Market for the Debt Securities
The Debt Securities are a new issue of securities and there is no
established trading market. Although we may list the Debt Securities on the New
York Stock Exchange, we cannot assure the liquidity of the trading market for
the Debt Securities.
4
<PAGE>
THE COMPANY
GE Global Insurance Holding Corporation, through its direct and indirect
subsidiaries, engages principally in the insurance and reinsurance business in
the United States and throughout the world. All of the outstanding common stock
of GE Global is owned by General Electric Capital Services, Inc., which in turn
is wholly-owned, directly and indirectly, by General Electric Company. Neither
of these affiliates will guarantee the Debt Securities.
Reinsurance is a form of insurance in which a reinsurer indemnifies a
primary insurer against part or all of the liability assumed by the primary
insurer under one or more insurance policies.
We engage in two principal business segments: (1) property and casualty
insurance/reinsurance and (2) life reinsurance. Our principal product lines
under the property and casualty segment are traditional property and casualty
reinsurance, healthcare reinsurance and specialty insurance (generally primary
property and casualty insurance). Our principal product lines under the life
reinsurance segment are traditional life reinsurance and financial reinsurance.
We also provide primary insurance products to hospitals, health maintenance
organizations and medical professionals as part of our healthcare product line
and to niche customers as part of our specialty product line.
Our principal executive offices are located at 5200 Metcalf, Overland Park,
Kansas 66201. Our telephone number is (913) 676-5200. When we refer to "GE
Global", "we" or "our" in this Prospectus, we mean GE Global Insurance Holding
Corporation and its subsidiaries on a consolidated basis, unless the context
requires otherwise.
RATIOS OF EARNINGS TO FIXED CHARGES
We have set forth below the ratio of earnings to fixed charges for GE Global
for the periods indicated. For the purposes of calculating this ratio, earnings
consist of net earnings adjusted for the provision for income taxes, minority
interest and fixed charges. Fixed charges consist of interest and discount on
all indebtedness, minority interest in pre-tax earnings from affiliates and
one-third of annual rentals, which we believe is a reasonable approximation of
the interest factor of such rentals.
<TABLE>
<CAPTION>
Three Months Ended
Year Ended December 31, April 1,
--------------------------------------------------------- ------------------
1995 1996 1997 1998 1999 2000
---- ---- ---- ---- ---- ------------------
<S> <C> <C> <C> <C> <C>
5.01 5.80 6.33 6.83 5.10 2.87
</TABLE>
USE OF PROCEEDS
We will use the net proceeds that we receive from the sale of the Debt
Securities offered by this Prospectus and the accompanying prospectus
supplement for general corporate purposes. General corporate purposes may
include repayment of other debt, capital expenditures, possible acquisitions,
and any other purposes that may be stated in any prospectus supplement. The net
proceeds may be invested temporarily or applied to repay short-term debt until
they are used for their stated purpose.
DESCRIPTION OF DEBT SECURITIES
General
The following description of the Debt Securities is subject to the detailed
provisions of the Indenture dated as of February 1, 1996 (the "Indenture"),
between GE Global and The Chase Manhattan Bank, as trustee (the "Trustee"). A
copy of the Indenture is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. Wherever we refer to particular provisions
of the Indenture or terms defined therein,
5
<PAGE>
such provisions or definitions are incorporated by reference as a part of the
statements made herein and the statements are qualified in their entirety by
such reference.
We will issue the Debt Securities in one or more series under the Indenture.
The Indenture does not limit the amount of Debt Securities or other unsecured,
senior debt which we may issue thereunder or limit the amount of other debt,
secured or unsecured, which we may issue. The Debt Securities will be
obligations exclusively of GE Global. We are a non-operating holding company
and conduct our business through our subsidiaries. The Debt Securities will be
effectively subordinated to the liabilities of our subsidiaries, including
substantial claims for policy benefits under contracts of reinsurance and
insurance and debt and preferred stock obligations. Currently, our only direct
wholly-owned operating subsidiaries are ERC, GE Re and Medical Protective. All
of our other indirect subsidiaries are directly or indirectly owned by ERC, GE
Re and Medical Protective. Since substantially all of our subsidiaries are
subject to regulatory control by various state insurance departments and other
foreign insurance regulatory authorities, the ability of such subsidiaries to
pay dividends or make loans or advances to us or to any of our other
subsidiaries without prior regulatory approval is limited by applicable laws
and regulations. The maximum amount available for the payment of dividends by
ERC in any one year without prior regulatory approval is limited to the lesser
of the prior year's net investment income (computed in accordance with
statutory accounting requirements) or 10% of statutory policyholders' surplus
as of the end of the previous year. During 2000, a maximum of $294 million of
dividends can be paid by ERC without obtaining regulatory approval. The maximum
amount available for the payment of dividends by GE Re or Medical Protective in
any one year without prior regulatory approval is limited to the greater of the
prior year's net income (computed in accordance with statutory accounting
requirements) or 10% of statutory policyholders' surplus as of the end of the
previous year. During 2000, GE Re cannot pay a dividend without obtaining
regulatory approval. Medical Protective can pay a maximum of $66 million of
dividends in 2000 without obtaining regulatory approval.
We refer you to the Prospectus Supplement accompanying this Prospectus for
the terms specified by GE Global pursuant to the Indenture of, and other
information with respect to, the Debt Securities being offered thereby. Such
terms may include:
. the designation, the aggregate principal amount and the authorized
denominations of such Debt Securities;
. the percentage of their principal amount at which such Debt Securities
will be issued;
. the date or dates on which such Debt Securities will mature;
. the currency, currencies or currency units in which the payments on such
Debt Securities will be payable;
. the rate or rates at which such Debt Securities will bear interest, if
any, or the method of determination of such rate or rates;
. the date or dates from which such interest, if any, shall accrue, the
dates on which such interest, if any, will be payable and the method of
determining holders to whom any such interest shall be payable;
. the prices, if any, at which, and the dates at or after which, such Debt
Securities must or may be repaid, repurchased or redeemed; and
. the exchanges, if any, on which the Debt Securities may be listed.
(Section 2.02)
Interest, if any, is to be payable to the persons, and in the manner,
specified in the Prospectus Supplement accompanying this Prospectus. Unless we
specify otherwise in the Prospectus Supplement, interest will be computed on
the basis of a 360-day year consisting of twelve 30-day months. (Section 2.10)
The Debt Securities will be unsecured and will rank equally and ratably with
all other unsecured and unsubordinated indebtedness of GE Global.
6
<PAGE>
Some of the Debt Securities may be issued as discounted Debt Securities to
be sold at a substantial discount below their stated principal amount. There
are federal income tax consequences and other special considerations that apply
to any such discounted Debt Securities. We will describe any such consequences
and considerations in the Prospectus Supplement with respect to any such Debt
Securities.
The Indenture does not contain any provisions that limit our ability to
incur indebtedness or that afford holders of Debt Securities protection in the
event that General Electric Company, as our sole indirect stockholder, causes
us to engage in a highly leveraged transaction, reorganization, restructuring,
merger or similar transaction.
Global Debt Securities, Delivery and Form
Unless otherwise specified in the Prospectus Supplement accompanying this
Prospectus, the Debt Securities will be issued in the form of one or more fully
registered Global Notes that will be deposited with, or on behalf of, The
Depository Trust Company, New York, New York (the "Depositary") and registered
in the name of the Depositary's nominee. The Depositary currently limits the
maximum denomination of any single Global Note to $400,000,000. For purposes of
this Prospectus, "Global Note" refers to the Global Note or Global Notes
representing an entire issue of Debt Securities.
Except as set forth below, a Global Note may be transferred, in whole and
not in part, only to another nominee of the Depositary or to a successor of the
Depositary or its nominee.
The Depositary has advised us as follows:
. The Depositary is
. a limited purpose trust company organized under the laws of the State
of New York;
. a "banking organization" within the meaning of the New York banking
law;
. a member of the Federal Reserve System;
. a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
. a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934;
. The Depositary was created to hold securities of its participants and to
facilitate the clearance and settlement of securities transactions among
its participants through electronic book entry changes in accounts of its
participants, eliminating the need for physical movements of securities
certificates;
. The Depositary participants include securities brokers and dealers,
banks, trust companies, clearing corporations and others, some of whom
own the Depositary;
. Access to the Depositary book-entry system is also available to others
that clear through or maintain a custodial relationship with a
participant, either directly or indirectly;
. Where we issue a Global Note in connection with the sale thereof to an
underwriter or underwriters, the Depositary will immediately credit the
accounts of participants designated by such underwriter or underwriters
with the principal amount of the Debt Securities purchased by such
underwriter or underwriters; and
. Ownership of beneficial interests in a Global Note and the transfers of
ownership will be effected only through records maintained by the
Depositary (with respect to participants), by the participants (with
respect to indirect participants and certain beneficial owners) and by
the indirect participants (with respect to all other beneficial owners).
The laws of some states require that certain purchasers of securities
take physical delivery in definitive form or securities they purchase.
These laws may limit your ability to transfer beneficial interests in a
Global Note.
7
<PAGE>
So long as a nominee of the Depositary is the registered owner of a Global
Note, such nominee for all purposes will be considered the sole owner or holder
of such Debt Securities under the Indenture. Except as provided below, you will
not be entitled to have Debt Securities registered in your name, will not
receive or be entitled to receive physical delivery of Debt Securities in
definitive form, and will not be considered the owners or holders thereof under
the Indenture.
Neither we, the Trustee, any paying agent nor any registrar of the Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Note, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
We will make payment of principal of, and interest on, Debt Securities
represented by a Global Note to the Depositary or its nominee, as the case may
be, as the registered owner and holder of the Global Note representing those
Debt Securities. The Depositary has advised us that upon receipt of any payment
of principal of, or interest on, a Global Note, the Depositary will immediately
credit accounts of participants with payments in amounts proportionate to their
respective beneficial interests in the principal amount of that Global Note, as
shown in the records of the Depositary. Standing instructions and customary
practices will govern payments by participants to owners of beneficial
interests in a Global Note held through those participants, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name". Those payments will be the sole responsibility of those
participants, subject to any statutory or regulatory requirements that may be
in effect from time to time.
Certain Covenants of GE Global
We shall not merge or consolidate with any other Person or sell, convey,
transfer or otherwise dispose of all or substantially all of our assets unless
we will be the continuing corporation or the successor Person shall be a
corporation organized under the laws of the United States or any state thereof
and such other Person shall expressly assume our obligations under the
Indenture. (Sections 11.01 and 11.02)
Modifications of the Indenture
With the consent of the holders of at least 66 2/3% in aggregate principal
amount of outstanding series of the Debt Securities that would be affected, the
Indenture permits us and the Trustee to add any provisions to or change in any
manner or eliminate any of the provisions of the Indenture or modify in any
manner the rights of the holders of Debt Securities of each such series.
However, without the consent of each holder of all of the outstanding Debt
Securities affected by that modification, we may not: (i) among other things,
extend the fixed maturity of any Debt Securities or reduce the principal amount
thereof (including in the case of a discounted Debt Security the amount payable
upon acceleration of the maturity thereof), reduce the redemption premium
thereon or reduce the rate or extend the time of payment of interest, if any,
thereon; or (ii) reduce the percentage of principal amount of such Debt
Securities of any series, the consent of the holders of which is required for
any addition or modification or any waiver of any past default. (Section 10.02)
Events of Default
An Event of Default with respect to any series of Debt Securities is any one
of the following events:
. a default in any payment of principal or premium, if any, on any Debt
Security of such series;
. a default for 30 days in the payment of any interest on any Debt Security
of such series;
. a default in the making or satisfaction of any sinking fund payment or
analogous obligation of the Debt Securities of such series;
. a default for 60 days after written notice to GE Global by the Trustee or
the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series in the performance of any other covenant in
respect of the Debt Securities of such series contained in the Indenture;
8
<PAGE>
. a default, as defined, with respect to any other series of Debt
Securities outstanding under the Indenture or as defined in any other
indenture or instrument evidencing or under which GE Global has
outstanding any indebtedness for borrowed money, as a result of which
such other series or such other indebtedness of GE Global shall have been
accelerated and such acceleration shall not have been annulled within 10
days after written notice thereof by the Trustee or the holders of at
least 25% in aggregate principal amount of the Debt Securities of such
series, provided that the resulting Event of Default with respect to such
series of Debt Securities may be remedied, cured or waived by the
remedying, curing or waiving of such other default under such other
series or such other indebtedness; or
. certain events in bankruptcy, insolvency or reorganization.
(Section 6.01)
The Indenture requires GE Global to deliver to the Trustee annually a
written statement as to the presence or absence of any default under the terms
thereof. (Section 4.05) No Event of Default with respect to a particular series
of Debt Securities under the Indenture necessarily constitutes an Event of
Default with respect to any other series of Debt Securities. The Indenture
provides that the Trustee may withhold notice to the holders of any series of
Debt Securities issued thereunder of any default (except in the payment of
principal, premium, if any, or interest, if any, on any of the Debt Securities
of such series or in the making of any sinking fund instalment or analogous
obligation with respect to such series) if the Trustee considers it in the
interest of such securityholders to do so. (Section 6.08)
If an Event of Default with respect to any series of Debt Securities is
continuing, either the Trustee or the holders of 25% in aggregate principal
amount of the outstanding Debt Securities of such series may declare the
principal, or in the case of discounted Debt Securities, such portion thereof
as may be described in the Prospectus Supplement accompanying this Prospectus,
of all such Debt Securities to be due and payable immediately. However, under
certain conditions the holders of a majority in principal amount of such Debt
Securities then outstanding may annul such declaration. The holders of a
majority in principal amount of all Debt Securities of a particular series then
outstanding may waive on behalf of the holders of all Debt Securities of such
series any past defaults with respect to such series (except, unless
theretofore cured, a default in the payment of principal of, premium, if any,
or interest, if any, on any of the Debt Securities of such series, or the
payment of any sinking fund instalment or analogous obligation on the Debt
Securities of such series or in respect of a covenant or provision which cannot
be modified without the consent of the holder of each Debt Security affected).
(Sections 6.01 and 6.07)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default with respect to any series of Debt
Securities shall occur and be continuing, the Trustee will not be under any
obligation to exercise any of its rights or powers under the Indenture at the
request, order or direction of any holders of Debt Securities of any series
issued thereunder unless such holders shall have offered to the Trustee
reasonable indemnity. (Sections 7.01 and 7.02) Subject to such indemnification
provision, the Indenture provides that the holders of a majority in principal
amount of the Debt Securities of any series issued thereunder at the time
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided that the Trustee may decline to follow any
such direction if it has not been offered reasonable indemnity therefor or if
it determines that the proceedings so directed would be illegal or involve it
in any personal liability. (Section 6.07)
Concerning the Trustee
The Chase Manhattan Bank acts as trustee under several indentures with
affiliates of GE Global and other subsidiaries of General Electric Company.
Any material business and other relationships (including additional
trusteeships), other than the present and prospective trusteeships referred to
in the foregoing paragraph, between, on the one hand, GE Global,
9
<PAGE>
General Electric Company or other affiliates of General Electric Company and,
on the other hand, the Trustee are described in the Prospectus Supplement
accompanying this Prospectus.
PLAN OF DISTRIBUTION
We may sell any issue of the Debt Securities in any one or more of the
following ways:
.through one or more underwriters or dealers;
.directly to one or more purchasers; or
.through one or more agents.
From time to time, we may receive, and may solicit, offers from underwriters
to purchase all or a part of the Debt Securities, to be reoffered to the public
through underwriting syndicates led by one or more managing underwriters or
through one or more underwriters acting alone or otherwise. The managing
underwriter or underwriters, if any, with respect to the offer and sale of the
Debt Securities to which the Prospectus Supplement accompanying this Prospectus
relates are set forth in such Prospectus Supplement and the members of the
underwriting syndicate, if any, are named in such Prospectus Supplement. We
will execute an underwriting agreement with any such underwriters and the names
of the underwriters and the terms of the transaction will be set forth in the
Prospectus Supplement. The Prospectus Supplement will be used by the
underwriters to make resales of the Debt Securities in respect of which this
Prospectus is delivered to the public. Such Prospectus Supplement also states
the discounts and commissions, if any, we will or are allowed to pay to the
underwriters and describes all other items, if any, constituting underwriting
compensation and the discounts and commissions we will, or are allowed to, pay
the dealers, if any. If underwriters or dealers are used in the sale, the
underwriters or dealers will acquire the Debt Securities for their own account
and may resell the Debt Securities from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined by the underwriter or dealer at the time
of sale. The relevant underwriting agreement will provide that the obligations
of the underwriters are subject to certain conditions precedent, and GE Global
will agree, under the underwriting agreement, to indemnify the underwriters
against certain civil liabilities, including liabilities under the Securities
Act of 1933.
Any agent involved in the offer or sale of the Debt Securities in respect of
which this Prospectus is delivered will be named, and any commissions payable
by GE Global to such agent will be set forth, in the Prospectus Supplement
accompanying this Prospectus. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the
period of its appointment. Agents and dealers may be entitled under agreements
entered into with GE Global to indemnification by GE Global against certain
civil liabilities, including liabilities under the Securities Act of 1933.
For further information with respect to the terms of the offering of Debt
Securities in respect of which this Prospectus is being delivered, see the
Prospectus Supplement accompanying this Prospectus.
LEGAL MATTERS
Except as may be otherwise specified in the Prospectus Supplement
accompanying this Prospectus, certain legal matters in connection with the Debt
Securities will be passed upon for GE Global by Simpson Thacher & Bartlett, New
York, New York, and for the underwriters, agents or dealers by Davis Polk &
Wardwell, New York, New York.
10
<PAGE>
EXPERTS
The financial statements and schedules of GE Global Insurance Holding
Corporation and its subsidiaries as of December 31, 1999 and 1998 and for each
of the years in the three-year period ended December 31, 1999 have been
incorporated by reference herein and in the registration statement in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
The following is an itemization of all fees and expenses incurred or
expected to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered hereby, other than underwriting
discounts and commissions. All but the Securities and Exchange Commission
registration fee are estimates and remain subject to future contingencies.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................. $ 528,000
Legal fees and expenses............................................. 200,000
Accounting fees and expenses........................................ 50,000
Trustee's fees and expenses......................................... 20,000
Printing and engraving fees......................................... 100,000
Rating Agency fees.................................................. 150,000
Miscellaneous expenses.............................................. 50,000
----------
Total........................................................... $1,098,000
==========
</TABLE>
Item 15. Indemnification Of Directors And Officers
Section 145 of the General Corporation Law of the State of Delaware provides
that in certain circumstances a corporation may indemnify directors and
officers against the reasonable expenses (including attorney's fees),
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by them in connection with any action, suit or proceeding by reason of
being or having been directors or officers, if such person shall have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, except that if such action, suit or
proceeding shall be in the right of the corporation, indemnification shall be
provided only against reasonable expenses (including attorney's fees) and no
such indemnification shall be provided as to any claim, issue or matter as to
which such person shall have been judged to have been liable to the
corporation, unless and to the extent that the Court of Chancery of the State
of Delaware or any other court in which the suit was brought shall determine
upon application that, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnify. A corporation shall be
required to indemnify against reasonable expenses (including attorney's fees)
any director or officer who successfully defends any such actions. The
foregoing statements are subject to the detailed provisions of Section 145 of
the General Corporation Law of the State of Delaware.
The By-Laws of GE Global provide that each person who at any time is or
shall have been a director, officer, employee or agent of GE Global, or is or
shall have been serving at the request of GE Global as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, and his heirs, executors and administrators, shall be
indemnified by GE Global in accordance with and to the full extent permitted by
the General Corporation Law of the State of Delaware.
GE Global intends to enter into one or more underwriting agreements which
will include provisions regarding the indemnification of GE Global and its
officers and directors by one or more underwriters against certain liabilities,
including liabilities under the Securities Act of 1933, as amended.
The directors of GE Global are insured under officers and directors
liability insurance policies purchased by General Electric Company. The
directors, officers and employees of GE Company are also insured against
fiduciary liabilities under the Employee Retirement Income Security Act of
1974.
II-1
<PAGE>
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
1.2* The Underwriting Agreement Standard Provisions dated February 21,
1996.
4* Indenture, dated as of February 1, 1996, between GE Global and The
Chase Manhattan Bank, as Trustee.
5* Opinion of Simpson Thacher & Bartlett as to the legality of the
Debt Securities.
12 Statement of Computation of Ratio of Earnings To Fixed Charges.
(The Statement, included as Exhibit 12 to GE Global's Form 10-Q
for the quarter ended April 1, 2000, is hereby incorporated herein
by reference.)
23.1* Consent of KPMG LLP.
23.2* Consent of Simpson Thacher & Bartlett. (The consent is included in
Exhibit 5.)
24* Powers of Attorney. (The Powers of Attorney is included on page
II-5 of the Registration Statement.)
25* Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Trustee.
</TABLE>
- --------
* Filed herewith.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
that a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act of 1934, (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section (d) of the
Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by a registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Overland Park, State of Kansas, on May 15, 2000.
GE Global Insurance Holding
Corporation
/s/ Robert J. Dellinger
By: _________________________________
Robert J. Dellinger
Senior Vice President
II-4
<PAGE>
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Robert J. Dellinger and John M. Connelly,
severally, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, and
in any and all capacities, to sign this Registration Statement and any and all
amendments to this Registration Statement, together with all schedules and
exhibits thereto, and to file the same with all scheduled exhibits thereto and
other documents in connection therewith with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, severally, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and
purposes as each such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof, all on
May 15, 2000.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on May 15, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ David L. Calhoun President, Chief Executive
______________________________________ Officer and Director
David L. Calhoun (Principal Executive
Officer)
/s/ Robert J. Dellinger Senior Vice President,
______________________________________ Chief Financial Officer
Robert J. Dellinger and Director (Principal
Financial Officer)
/s/ Dennis D. Dammerman Chairman
______________________________________
Dennis D. Dammerman
/s/ James A. Parke Director
______________________________________
James A. Parke
/s/ John M. Connelly Senior Vice President,
______________________________________ General Counsel and
John M. Connelly Director
/s/ William J. Steilen Vice President and
______________________________________ Controller (Principal
William J. Steilen Accounting Officer)
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
1.2* The Underwriting Agreement Standard Provisions dated February 21,
1996.
4* Indenture, dated as of February 1, 1996, between GE Global and The
Chase Manhattan Bank, as Trustee.
5* Opinion of Simpson Thacher & Bartlett as to the legality of the
Debt Securities.
12 Statement of Computation of Ratio of Earnings To Fixed Charges.
(The Statement, included as Exhibit 12 to GE Global's Form 10-Q
for the quarter ended April 1, 2000, is hereby incorporated herein
by reference.)
23.1* Consent of KPMG LLP.
23.2* Consent of Simpson Thacher & Bartlett. (The consent is included in
Exhibit 5.)
24* Powers of Attorney. (The Powers of Attorney is included on page
II-5 of the Registration Statement.)
25* Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Trustee.
</TABLE>
- --------
* Filed herewith.
II-6
<PAGE>
Exhibit 1.1
UNDERWRITING AGREEMENT
As of ________, 200_
GE Global Insurance Holding Corporation
5200 Metcalf
Overland Park, Kansas 66201
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "Underwriters"), and we understand that GE Global Insurance Holding
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
[Currency and Principal Amount] aggregate principal amount of [Full title of
Notes] (the "Notes"). The Notes will be issued pursuant to the provisions of the
Indenture listed below (as such Indenture shall be supplemented to the date
hereof) (the "Indenture") between the Company and the Trustee named below (the
"Trustee").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the respective principal amounts of Notes
set forth below opposite their names at a purchase price of ____% of the
principal amount of Notes [plus accrued interest, if any, from [Date of Notes]
to the date of payment and delivery:
<TABLE>
<CAPTION>
Principal Amount
Name of Notes
---- ----------------
<S> <C>
$
[Insert syndicate list] Total...... =================
</TABLE>
<PAGE>
The Underwriters will pay for the Notes upon delivery thereof at the
location identified below at _____ a.m. (New York time) on ___________, 200_, or
at such other time, not later than 3:00 p.m. (New York time) on _________, 200_,
as shall be agreed upon by the Company and the Manager. The time and date of
such payment and delivery are hereinafter referred to as the "Closing Date".
The Notes shall have the terms set forth in the Prospectus dated _________,
2000 and the Prospectus Supplement dated _________, 200_, including the
following:
Registration Statement No. 333-
Manager(s) and address(es):
Certain Terms of the Notes:
Title of Notes:
Aggregate Principal Amount of Notes:
Maturity Date:
Interest Rate:
Principal and Interest ___________ __ and
Payment Dates: ___________ __, commencing
___________ __, 200_
Record Dates: ___________ __ and
___________ __
Redemption Provisions:
Repayment Provisions:
Title of Indenture:
Trustee:
2
<PAGE>
Note Transfer Agent and Registrar:
Closing Date and Location:
The Notes are to be offered to the public at the Initial Public Offering
Price specified below, and to dealers at prices which represent concessions not
in excess of the Dealer Concession set forth below, and the Underwriters may
allow and such dealers may reallow concessions not in excess of the Reallowance
Concession set forth below:
Initial Public Offering Price: ___% of the principal amount of the
Notes [plus accrued interest from
_________, 200_](1)
Purchase Price: __% of the principal amount of the
Notes [plus accrued interest from
____, 200_](1)
Dealer Concession: ____% of the principal amount of the
Notes
Reallowance Concession: ____% of the principal amount of the
Notes
[In addition to the conditions to the several obligations of the
Underwriters incorporated by reference herein, the several obligations of the
Underwriters hereunder are subject to the condition that the Notes shall be
rated no lower than "AA" by Standard & Poor's Corporation and "Aa" by Moody's
Investors Service, Inc.](2)
All provisions contained in the document entitled GE Global Insurance
Holding Corporation Underwriting Agreement Standard Provisions (Debt Securities)
dated February 21, 1996 (the "Standard Provisions"), are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that if any term defined in such document is otherwise defined herein,
the definition set forth herein shall control.
- ----------
(1) To be added only if the transaction does not close flat.
(2) To be included only in the Underwriting Agreement relating to the first
issuance of Notes.
3
<PAGE>
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement as of the date first set forth above in the space set forth
below.
Very truly yours,
[Name(s) of Representative(s) or
Underwriter(s)]
[Acting severally on behalf of
themselves and the several
Underwriters named herein]
By: [Name of Signing
Representative or Underwriter]
By: __________________________
Name:
Title:
Accepted:
GE GLOBAL INSURANCE
HOLDING CORPORATION
By: _____________________________
Name:
Title:
4
<PAGE>
Exhibit 1.2
GE GLOBAL INSURANCE HOLDING CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
February 21, 1996
From time to time, GE Global Insurance Holding Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated debt securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (with respect to
such designated debt securities, the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), and there has become effective, a registration statement (the
file number of which will be set forth in the Underwriting Agreement), including
a prospectus, relating to debt securities of the Company, including the Notes,
and has filed with, or transmitted for filing to, or shall promptly hereafter
file with or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Notes pursuant to Rule 424
under the Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means such registration statement, including the
exhibits
<PAGE>
thereto, as amended to the date of this Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the Prospectus Supplement.
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Notes, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus", "Prospectus" and "preliminary prospectus"
shall include in each case the documents incorporated by reference therein. The
terms "supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Notes as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Notes are as
specified in the Underwriting Agreement.
2. Purchase and Delivery. Payment for the Notes shall be made by wire
transfer in immediately available funds (unless payment in other form of funds
is specified in the Underwriting Agreement) to the account specified by the
Company to the Manager the business day prior to the time of closing, on the
date and at the time specified in the Underwriting Agreement, upon delivery to
the nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more global notes representing the Notes.
3. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall be
pending before or (to the knowledge of the Company) threatened by the
Commission; there shall have been no material adverse change and no development
involving a prospective material adverse change in the condition of the Company
and its consolidated affiliates, taken as a whole, from that set forth in the
Registration Statement and the Prospectus, as amended or supplemented as of the
date of the Underwriting Agreement; and the representations and warranties of
the Company contained herein shall be true and correct on and as of the Closing
Date as if made on and as of the Closing Date; and the Manager shall have
received on the Closing Date a certificate, dated the Closing Date and signed by
an executive officer of the Company, to the effect that no stop order suspending
the effectiveness of the Registration Statement is in effect and no proceedings
for such purpose are
2
<PAGE>
pending before or (to the knowledge of such executive officer) threatened by the
Commission, there has been no material adverse change and no development
involving a prospective material adverse change in the condition of the Company
and its consolidated affiliates, taken as a whole, from that set forth in the
Registration Statement and the Prospectus, as amended or supplemented as of the
date of the Underwriting Agreement and the representations and warranties of the
Company contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date.
(b) The Manager shall have received on and as of the Closing Date an
opinion of Simpson Thacher & Bartlett, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the State of Delaware
with all requisite corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) the Indenture has been duly authorized, executed and delivered by
the Company and duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable against the Company
in accordance with its terms;
(iii) the Notes have been duly authorized, executed and issued by the
Company and, assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with the Underwriting Agreement, will
constitute valid and binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the benefits of
the Indenture;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company;
(v) no consent, approval, authorization, order, registration or
qualification of or with any Federal or New York court or governmental
agency or body or any Delaware court or governmental agency or body acting
pursuant to the Delaware General Corporation Law is required for the issue
and sale of the Notes by the Company or the consummation by the Company of
the other transactions contemplated by this Agreement and the Indenture
except for the registration under the Securities Act and such as may be
required under the securities or blue sky laws in
3
<PAGE>
connection with the purchase and distribution of the Notes by the
Underwriters, nor will the issue and sale of the Notes by the Company or
the compliance by the Company with all of the provisions of this Agreement
or the Indenture or the consummation of the transactions herein and therein
contemplated violate the Company's Certificate of Incorporation or By-laws
or any Federal or New York statute or the Delaware General Corporation Law
or any rule or regulation or any judgment, order or decree known to such
counsel that has been issued pursuant to any Federal or New York statute or
the Delaware General Corporation Law by any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any
of their properties or breach or result in any default under any indenture,
mortgage or other agreement or instrument known to such counsel;
(vi) the statements made in the Prospectus under the captions
"Description of Debt Securities" and "Certain Terms of Notes", insofar as
they purport to constitute summaries of certain terms of documents referred
to therein, constitute accurate summaries of the terms of such documents in
all material respects;
(vii) there are no contracts or other documents known to such counsel
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement or
incorporated by reference therein that are not described and filed or
incorporated by reference as required; and
(viii) the Registration Statement has become 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
and no proceeding for that purpose has been instituted or threatened by the
Commission; the Prospectus was filed with the Commission pursuant to Rule
424(b) of the rules and regulations under the Securities Act.
In addition, such counsel shall state that they have participated in
conferences with certain officers and employees of the Company, representatives
of the Company's independent public accountants, the Underwriters and their
counsel, 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 or the Prospectus and has not made any
independent check or verification thereof except to the extent described in (vi)
and (vii) above, on the basis of the foregoing, based upon their examination of
the Registration Statement and the Prospectus (including the documents
incorporated by reference therein), their investigations made in connection with
the preparation
4
<PAGE>
of the Registration Statement and the Prospectus (including the documents
incorporated by reference therein) and their participation in the conferences
referred to above, (i) such counsel is of the opinion that the Registration
Statement, as of its effective date, or if the Registration Statement has been
amended, as of the effective date of such amendment, and the Prospectus, as of
the date of the Prospectus Supplement relating to the Notes, complied as to form
in all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations of the Commission
thereunder, except that in each case such counsel expresses no opinion with
respect to the financial statements or other financial or statistical data
contained in the Registration Statement or the Prospectus, or with respect to
the Statement of Eligibility on Form T-1 of the Trustee, (ii) such counsel is of
the opinion that each document incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, when such document was filed or became
effective, or if any incorporated documents was amended, when such amendment was
filed or became effective, complied as to form in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case such counsel expresses no
opinion with respect to the financial statements or other financial or
statistical data contained in any such document, and (iii) such counsel has no
reason to believe that the Registration Statement, as of its effective date and
as of the date of the Prospectus Supplement relating to the Notes, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus Supplement
relating to the Notes, contained, and the Prospectus (as amended or
supplemented) contains any untrue statement of a material fact or omitted or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that in each case such counsel expresses no opinion or belief with
respect to the financial statements or other financial or statistical data
contained in the Registration Statement or the Prospectus, or with respect to
the Statement of Eligibility on Form T-1 of the Trustee.
(c) The Manager shall have received on and as of the Closing Date an
opinion of John Connelly, Senior Vice President, General Counsel and Secretary
of the Company (and, in the case of the opinions relating to (1) ERC
International Reinsurance Holding GmbH, Frankona
Ruckversicherungs-Aktiengesellschaft and Aachener Ruckversicherungs-Gesellschaft
Aktiengesellschaft, German counsel reasonably satisfactory to the Manager, (2)
Employers Re Corporation (UK) Ltd. and Employers Reassurance International
Limited, United Kingdom counsel reasonably satisfactory to the Manager and (3)
Employers Reinsurance International, Danish counsel reasonably satisfactory to
the Manager) dated the Closing Date, to the effect that:
5
<PAGE>
(i) each of Employers Reinsurance Corporation, Employers Reassurance
Corporation, ERC Life Reinsurance Corporation, Puritan Excess and Surplus
Lines Insurance Company, ERC International Reinsurance Holding GmbH,
Employers Reinsurance International, Employers Reassurance International
Limited, Frankona Ruckversicherungs-Aktiengesellschaft, Aachener
Ruckversicherungs- Gesellschaft Aktiengesellschaft and Employer Re
Corporation (UK) Ltd. (collectively, the "Subsidiaries") has been duly
incorporated and is validly existing and in good standing as a corporation
under the laws of its jurisdiction of incorporation with all requisite
corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) each of the Company and the Subsidiaries is duly qualified to
transact business and is in good standing in the jurisdictions in which the
conduct of its business or the ownership of its property requires such
qualification, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iii) all of the issued shares of capital stock of or other ownership
interests in each Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and, except as set forth in
the Prospectus or for directors' qualifying shares, are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(iv) the issuance and sale of the Notes by the Company as provided
herein, the compliance by the Company with all of the provisions of the
Notes, the Indenture and this Agreement and the consummation of the
transactions contemplated herein and therein will not contravene the
organizational documents of any of the Subsidiaries or result in any
violation of any of the terms or provisions of (x) any law, order, rule or
regulation (other than with respect to applicable state securities or Blue
Sky laws or state insurance securities laws, as to which such counsel need
not express any opinion) or (y) any indenture, mortgage or other agreement
or instrument known to such counsel by which the Company or any of its
subsidiaries is bound, except, in the case of this clause (y), for such
violations that would not, individually or in the aggregate, have a
material adverse affect on the Company and its subsidiaries, taken as a
whole;
6
<PAGE>
(v) each of the Company and the Subsidiaries has all licenses,
consents, approvals, authorizations, orders, registrations and
qualifications of or from, and has made all filings with, all courts and
governmental agencies and bodies necessary to own, lease, license and use
its properties and conduct its business as described or contemplated by the
Prospectus and is in compliance with all laws, orders, rules and
regulations of all courts and governmental agencies and bodies having
jurisdiction over it and any of its properties, except where the failure to
have any such license, consent, approval, authorization, order,
registration or qualification, or so to comply, would not, individually or
in the aggregate with all other such failures, have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and, to the
best of such counsel's knowledge, after due inquiry, there is no pending or
threatened action, suit, proceeding or investigation that reasonably could
lead to the revocation, termination or suspension of, or render invalid or
otherwise ineffective, any such license, consent, approval, authorization,
order, registration or qualification, other than any such revocation,
termination, suspension, invalidity or ineffectiveness that would not,
individually or in the aggregate with all other such revocations,
terminations, suspensions, invalidities and ineffectiveness, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(vi) the statements contained in the Prospectus under the caption "The
Company -- Regulatory Matters" and in Item 8 of the Company's Registration
Statement on Form 10/A as filed with the Commission on February 8, 1996,
insofar as they purport to constitute summaries of certain proceedings,
legal matters or terms of documents referred to therein, constitute
accurate summaries of such proceedings, legal matters or terms of such
documents in all material respects; and
(vii) except as disclosed in the Prospectus, there are no pending or
threatened actions, suits or proceedings known to such counsel against the
Company or any of its subsidiaries that are required to be disclosed in the
Registration Statement that are not so disclosed.
In addition, such counsel shall state that he has participated in
conferences with certain officers and employees of the Company, representatives
of the Company's independent public accountants, the Underwriters and their
counsel, 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 or the Prospectus and has not made any
independent check or verification thereof except to the extent described in (vi)
and (vii) above, on the basis of the foregoing, based upon his examination of
the
7
<PAGE>
Registration Statement and the Prospectus (including the documents incorporated
by reference therein), his investigations made in connection with the
preparation of the Registration Statement and the Prospectus (including the
documents incorporated by reference therein) and his participation in the
conferences referred to above, such counsel has no reason to believe that the
Registration Statement, as of its effective date and as of the date of the
Prospectus Supplement relating to the Notes, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement relating to the Notes,
contained, and the Prospectus (as amended or supplemented) contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in each case such
counsel expresses no opinion or belief with respect to the financial statements
or other financial or statistical data contained in the Registration Statement
or the Prospectus, or with respect to the Statement of Eligibility on Form T-1
of the Trustee.
(d) The Manager shall have received on and as of the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, covering the matters in (ii), (iii), (iv) and (vi) of paragraph
(b) above.
In addition, such counsel shall state that they have participated in
conferences with certain officers and employees of the Company, representatives
of the Company's independent public accountants, the Underwriters and their
counsel, 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 or the Prospectus and has not made any
independent check or verification thereof except to the extent described in (vi)
of paragraph (b) above, on the basis of the foregoing, based upon their
consideration of the Registration Statement and the Prospectus and their
participation in the conferences referred to above, (i) such counsel is of the
opinion that the Registration Statement, as of its effective date, or if the
Registration Statement has been amended, as of the effective date of such
amendment, and the Prospectus as of the date of the Prospectus Supplement
relating to the Notes, complied as to form in all material respects with the
requirements of the Securities Act, the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder, except that in each case
such counsel expresses no opinion with respect to the financial statements or
other financial or statistical data contained in the Registration Statement or
the Prospectus, or with respect to the Statement of Eligibility on Form T-1 of
the Trustee and (ii) such counsel has no reason to believe that the Registration
Statement, as of its effective date and as of the date
8
<PAGE>
of the Prospectus Supplement relating to the Notes, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the Prospectus Supplement relating to the
Notes, contained, and the Prospectus (as amended or supplemented) contains any
untrue statement of a material fact or omitted or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in each case such
counsel expresses no opinion or belief with respect to the financial statements
or other financial or statistical data contained in the Registration Statement
or the Prospectus, or with respect to the Statement of Eligibility on Form T-1
of the Trustee.
In rendering the opinions referred to in paragraphs (b) and (d) above, such
counsel may state that the opinions set forth in (ii) and (iii) of paragraph (b)
are subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceedings in equity or at law) and an implied covenant of good faith and
fair dealing.
(e) The Manager shall have received on the date of this Agreement, letters
dated such date, from each of Ernst & Young LLP, KPMG Peat Marwick LLP and C&L
Treuhand-Vereingung Deutsche Revision, independent public accountants, and on
the Closing Date, a letter dated the Closing Date from KPMG Peat Marwick LLP, in
each case in form and substance satisfactory to the Manager, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial and pro forma information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
4. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants as follows:
(a) To furnish to the Manager, without charge (i) upon the request of the
Manager, two conformed copies of the Registration Statement (including exhibits
and documents incorporated by reference), and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without exhibits but
including documents incorporated by reference) and (ii) during the period
mentioned in paragraph (c) below, as many copies of the Prospectus and any
amendments or supplements thereto prepared pursuant to paragraph (c) below as
the Manager may reasonably request.
9
<PAGE>
(b) To prepare and file (or mail for filing) with the Commission pursuant
to Rule 424 under the Securities Act as promptly as practicable after the
execution of this Agreement, a prospectus supplement in a form approved by the
Manager setting forth such information as is necessary so that the Prospectus,
when delivered to a purchaser of the Notes, will comply with law and, before
amending the Registration Statement or supplementing the Prospectus with respect
to the Notes, to furnish the Manager a copy of each such proposed amendment or
supplement.
(c) If, during such period after the first date of the public offering of
the Notes as in the opinion of Davis Polk & Wardwell a prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager shall furnish to the Company)
to which Notes may have been sold by the Manager on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements to the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws or insurance securities laws of such jurisdictions
as the Manager shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) reasonably incurred in connection with such
qualification and in connection with the determination of the eligibility of the
Notes for investment under the laws of such jurisdictions as the Manager may so
designate; provided that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now qualified, to take any action
which would subject it to general or unlimited service of process in any
jurisdiction where it is not now subject or to qualify the Notes for offer and
sale in any jurisdiction (notified to the Manager prior to the execution of the
Underwriting Agreement) in which the Company is unable or unwilling to comply
with disclosure or reporting requirements imposed by such jurisdiction.
(e) To make generally available to its security holders as soon as
practicable an earnings statement (which need not be audited) covering a twelve-
month period beginning after the date of this Agreement which shall satisfy the
10
<PAGE>
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder.
5. Representations and Warranties; Indemnification and Contribution. The
Company represents and warrants to each Underwriter that (i) each document filed
by the Company pursuant to the Exchange Act which is incorporated by reference
in the Prospectus complied when so filed in all material respects with the
Exchange Act and the rules and regulations thereunder, and each document, if
any, hereafter filed and so incorporated by reference in the Prospectus will
comply when so filed in all material respects with the Exchange Act and the
rules and regulations thereunder; (ii) the Registration Statement and the
Prospectus comply, and the Registration Statement and the Prospectus (and any
amendments and supplements thereto, other than supplements relating only to debt
securities other than the Notes) will on the Closing Date comply in all material
respects with the Securities Act and the rules and regulations of the Commission
thereunder; (iii) each preliminary prospectus, if any, filed pursuant to Rule
424 under the Securities Act complied when so filed in all material respects
with the Securities Act and the rules and regulations thereunder; (iv) the
Registration Statement, at the time it became effective and as of the date of
the Prospectus Supplement relating to the Notes, did 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 not misleading, and
the Prospectus as of the date of the Prospectus Supplement relating to the Notes
did not, and the Prospectus (as amended or supplemented, other than as to
supplements relating only to debt securities other than the Notes) on the
Closing Date will not, contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; except
that these representations and warranties do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon information
furnished to the Company in writing by any Underwriter expressly for use
therein; and (v) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus (if used within the
period set forth in paragraph (c) of Section 4 hereof and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state
11
<PAGE>
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Company by any Underwriter expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Notes, or any person controlling such Underwriter, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendment or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Notes to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, the Prospectus
or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party, and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be
12
<PAGE>
liable for the reasonable fees and expenses of more than one separate firm (in
addition to local counsel) for all such indemnified parties and that all such
fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager in the case of parties indemnified pursuant
to the second preceding paragraph and by the Company in the case of parties
indemnified pursuant to the first preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in this Section 5 is unavailable to an
indemnified party under the second or third paragraphs hereof in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand 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 relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, 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 shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus, bear to the aggregate
public offering price of the Notes. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
13
<PAGE>
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 5 were 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 account of the
equitable considerations provided for in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 5, 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 such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such 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 pursuant to this Section 5 are several, in proportion to the
respective amounts of the Notes underwritten by each of such Underwriters, and
not joint. The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 5 and
the representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for any of the Notes.
6. Termination. Unless otherwise provided in the Underwriting Agreement,
this Agreement shall be subject to termination in the discretion of the Manager
at any time prior to the Closing Date, by notice given by the Manager to the
Company, if (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited; (ii) a general moratorium on
commercial banking activities in the State of New York or the United States
shall have been declared by Federal or New York State authorities; or (iii)
there shall have occurred any material outbreak, or material escalation, of
hostilities or other national or international calamity or crisis, of such
magnitude and severity in its effect on the financial markets of the United
States, in the
14
<PAGE>
reasonable judgment of the Manager, as to prevent or materially impair the
marketing, or enforcement of contracts for sale, of the Notes.
If this Agreement shall be terminated by the Underwriters, or any of them,
because (a) of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or (b) for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Notes.
7. Defaulting Underwriters. If, on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Notes which it or they have agreed
to purchase hereunder on such date, and the aggregate principal amount of Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Notes to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Notes set forth
opposite their respective names in the Underwriting Agreement bears to the
aggregate principal amount of Notes set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Notes which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Notes that any Underwriter has agreed to purchase
be increased pursuant to this Section by an amount in excess of one-ninth of
such principal amount of Notes without the written consent of such Underwriter.
If, on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Notes which it or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date but in no event
for longer than seven days, in order that the required changes, if any, in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15
<PAGE>
9. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
16
<PAGE>
Exhibit 4
GE GLOBAL INSURANCE HOLDING CORPORATION
THE CHASE MANHATTAN BANK, NATIONAL ASSOCIATION, Trustee
Indenture
Dated as of February 1, 1996
<PAGE>
TABLE OF CONTENTS/1/
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions..................................... 1
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
Section 2.01. Forms........................................... 6
Section 2.02. Amount Unlimited; Issuable in
Series........................................ 7
Section 2.03. Authentication.................................. 9
Section 2.04. Date and Denomination of
Securities.................................... 11
Section 2.05. Execution of Securities......................... 12
Section 2.06. Exchange and Registration of
Transfer of Securities........................ 12
Section 2.07. Mutilated, Destroyed, Lost or
Stolen Securities............................. 14
Section 2.08. Temporary Securities............................ 15
Section 2.09. Cancellation of Securities Paid,
etc........................................... 16
Section 2.10. Computation of Interest......................... 16
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS
Section 3.01. Applicability of Article........................ 17
Section 3.02. Notice of Redemption; Selection of
Securities.................................... 17
Section 3.03. Payment of Securities Called for
Redemption.................................... 18
Section 3.04. Satisfaction of Mandatory Sinking
Fund Payments with Securities................. 19
Section 3.05. Redemption of Securities for
Sinking Fund.................................. 19
Section 3.06. Repayment at the Option of the
Holder........................................ 21
- ------------------------
/1/This table of contents shall not, for any purposes, be deemed to be a part
of this Indenture.
i
<PAGE>
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and
Interest...................................... 22
Section 4.02. Offices for Notices and Payments,
etc........................................... 22
Section 4.03. Appointments to Fill Vacancies in
Trustee's Office.............................. 23
Section 4.04. Provision as to Paying Agent.................... 23
Section 4.05. Statement as to Compliance...................... 24
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section 5.01. Securityholder Lists............................ 25
Section 5.02. Reports by the Company.......................... 25
Section 5.03. Reports by the Trustee.......................... 25
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
Section 6.01. Events of Default............................... 25
Section 6.02. Payment of Securities on Default;
Suit Therefor................................. 29
Section 6.03. Application of Moneys Collected by
Trustee....................................... 32
Section 6.04. Proceedings by Securityholders.................. 33
Section 6.05. Proceedings by Trustee.......................... 34
Section 6.06. Remedies Cumulative and
Continuing.................................... 35
Section 6.07. Direction of Proceedings and Waiver
of Defaults by Securityholders................ 35
Section 6.08. Notice of Defaults.............................. 35
Section 6.09. Undertaking to Pay Costs........................ 36
ii
<PAGE>
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of
Trustee....................................... 37
Section 7.02. Reliance on Documents, Opinions,
etc........................................... 38
Section 7.03. No Responsibility for Recitals,
etc........................................... 40
Section 7.04. Ownership of Securities......................... 40
Section 7.05. Moneys to be Held in Trust...................... 40
Section 7.06. Compensation and Expenses of
Trustee....................................... 40
Section 7.07. Officers' Certificate as Evidence............... 41
Section 7.08. Indentures Not Creating Potential
Conflicting Interests for the
Trustee....................................... 41
Section 7.09. Eligibility of Trustee.......................... 42
Section 7.10. Resignation or Removal of Trustee............... 42
Section 7.11. Acceptance by Successor Trustee................. 44
Section 7.12. Succession by Merger, etc....................... 45
Section 7.13. Other Matters Concerning the
Trustee....................................... 46
Section 7.14. Appointment of Authenticating
Agent......................................... 46
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders....................... 48
Section 8.02. Proof of Execution by
Securityholders............................... 48
Section 8.03. Who Are Deemed Absolute Owners.................. 49
Section 8.04. Company-Owned Securities
Disregarded................................... 49
Section 8.05. Revocation of Consents; Future
Holders Bound................................. 50
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings............................ 50
Section 9.02. Call of Meetings by Trustee..................... 51
Section 9.03. Call of Meetings by Company or
Securityholders............................... 51
Section 9.04. Qualifications for Voting....................... 51
Section 9.05. Regulations..................................... 52
iii
<PAGE>
Section 9.06. Voting.......................................... 52
Section 9.07. No Delay of Rights by Meeting................... 53
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Securityholders................... 54
Section 10.02. Supplemental Indentures with
Consent of Securityholders................... 54
Section 10.03. Compliance with Trust Indenture
Act; Effect of Supplemental
Indentures................................... 56
Section 10.04. Notation on Securities......................... 57
Section 10.05. Evidence of Compliance of
Supplemental Indenture to be
Furnished Trustee............................ 57
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc.,
Except Under Certain Conditions.............. 57
Section 11.02. Successor Corporation to be
Substituted.................................. 58
Section 11.03. Documents to be Given Trustee.................. 59
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture......................... 60
Section 12.02. Deposited Moneys to be Held in
Trust by Trustee............................. 61
Section 12.03. Paying Agent to Repay Moneys Held.............. 61
Section 12.04. Return of Unclaimed Moneys..................... 61
iv
<PAGE>
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely
Corporate Obligations........................ 61
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's
Successors................................... 62
Section 14.02. Official Acts by Successor
Corporation.................................. 62
Section 14.03. Addresses for Notices, etc..................... 62
Section 14.04. New York Contract.............................. 62
Section 14.05. Evidence of Compliance with
Conditions Precedent......................... 62
Section 14.06. Legal Holidays................................. 63
Section 14.07. Securities in a Specified Currency
other than Dollars........................... 63
Section 14.08. Trust Indenture Act to Control................. 64
Section 14.09. Table of Contents, Headings,
etc.......................................... 64
Section 14.10. Execution in Counterparts...................... 65
Section 14.11. Separability; Benefits......................... 65
v
<PAGE>
THIS INDENTURE, dated as of February 1, 1996 between GE Global
Insurance Holding Corporation, a Delaware corporation (the "Company"), and The
Chase Manhattan Bank, National Association, a national 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, the Company has duly authorized the issue from time to time
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
1
<PAGE>
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01
-----------
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture shall have the respective meanings
specified in this Section 1.01. All other terms used in this Indenture which
are defined in the Trust Indenture Act of 1939, as amended, or which are by
reference therein defined in the Securities Act of 1933, as amended, (except as
herein otherwise expressly provided or unless the context otherwise requires)
shall have the meanings assigned to such terms in said Trust Indenture Act and
in said Securities Act as in force at the date of this Indenture as originally
executed. 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.
Authenticating Agent:
- --------------------
The term "Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 7.14 to act on behalf of the Trustee to authenticate
Securities.
Board of Directors:
- ------------------
The term "Board of Directors" shall mean the Board of Directors of the
Company or any Committee of such Board to which the powers of such Board have
been lawfully delegated.
Company:
- -------
The term "Company" shall mean GE Global Insurance Holding Corporation,
a Delaware corporation, until any
2
<PAGE>
successor corporation shall have become such pursuant to the provisions of
Article Eleven, and thereafter "Company" shall mean such successor, except as
otherwise provided in Section 11.02.
Dollar:
- ------
The term "Dollar" shall mean the coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
Event of Default:
- ----------------
The term "Event of Default" shall have the meaning specified in
Section 6.01.
Indenture:
- ---------
The term "Indenture" shall mean this instrument as originally executed
or as it may be amended or supplemented from time to time as herein provided,
and shall include the form and terms of particular series of Securities
established as contemplated hereunder.
Interest:
- --------
The term "interest," when used with respect to a non-interest bearing
Security, means interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund, or otherwise.
Officers' Certificate:
- ---------------------
The term "Officers' Certificate" shall mean a certificate signed by
the President, the Chairman or any Vice Chairman of the Board or any Vice
President and by the Treasurer or any Assistant Treasurer, the Comptroller or
the Secretary or any Assistant Secretary of the Company and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 14.05
if and to the extent required by the provisions of such Section.
Opinion of Counsel:
- ------------------
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or of counsel to the Company, or may
be other counsel satisfactory to the Trustee. Each such opinion
3
<PAGE>
shall comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 14.05 if and to the extent required by the
provisions of such Section.
Original Issue Discount Security:
- --------------------------------
The term "Original Issue Discount Security" shall mean 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 6.01.
Overdue Rate:
- ------------
The term "Overdue Rate" with respect to each series of Securities
shall mean the rate of interest designated as such in the resolution of the
Board of Directors or the supplemental indenture, as the case may be, relating
to such series as contemplated by Section 2.02, or if no such rate is specified,
the rate at which such Securities shall bear interest.
Person:
- ------
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Principal Office of the Trustee:
- -------------------------------
The term "principal office of the Trustee," or other similar term,
shall mean the principal office of the Trustee at which at any particular time
its corporate trust business shall be administered.
Responsible Officer:
- -------------------
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman or any vice chairman of the board of directors, the
chairman or any vice chairman of the executive committee of the board of
directors, the president, any executive vice president, any senior vice
president, any vice president, any second vice president, any assistant vice
president, the cashier, any assistant cashier, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer, any
assistant trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at
4
<PAGE>
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
Security or Securities; Outstanding:
- -----------------------------------
The terms "Security" or "Securities" shall mean any Security or
Securities, as the case may be, authenticated and delivered under this
Indenture.
The term "Outstanding," when used with reference to Securities, shall,
subject to the provisions of Section 8.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company) or shall
have been set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent), provided that if such Securities are to
be redeemed prior to the maturity thereof, notice of such redemption shall
have been mailed as in Article Three provided, or provision satisfactory to
the Trustee shall have been made for mailing such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered, or which shall have
been paid, pursuant to the terms of Section 2.07, unless proof satisfactory
to the Trustee is presented that any such Securities are held by persons in
whose hands any of such Securities is a valid, binding and legal obligation
of the Company.
In determining whether the holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.01.
5
<PAGE>
Securityholder:
- --------------
The term "Securityholder," "holder of Securities," or other similar
terms, shall mean any person in whose name at the time a particular Security is
registered on the books of the Company kept for that purpose in accordance with
the terms hereof.
Specified Currency:
- ------------------
The term "Specified Currency" shall mean the currency in which a
Security is denominated, which may include Dollars, any foreign currency or any
composite of two or more currencies.
Trust Indenture Act of 1939:
- ---------------------------
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939 as it was in force at the date of execution of this Indenture,
except as provided in Section 10.03.
Trustee:
- -------
The term "Trustee" shall mean the corporation or association named as
Trustee in this Indenture and, subject to the provisions of Article Seven
hereof, shall also include its successors and assigns as Trustee hereunder. If
pursuant to the provisions of this Indenture there shall be at any time more
than one Trustee hereunder, the term "Trustee" as used with respect to
Securities of any series shall mean the Trustee with respect to Securities of
that series.
6
<PAGE>
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
Section 2.01. Forms. (a) The Securities of each series shall be in
-----
substantially such form as shall be established by or pursuant to a resolution
of the Board of Directors or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
legends or endorsements placed thereon as the officers executing the same may
approve (execution thereof to be conclusive evidence of such approval) and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Securities of such series may be listed, or to conform to usage.
(b) The resolutions adopted by the Board of Directors establishing
the form and terms of the Securities of any series pursuant to Sections 2.01 and
2.02, respectively, of this Indenture, may provide for issuance of the
Securities in global form. If Securities of a series are so authorized to be
issued in global form, any such global Security may provide that it shall
represent that aggregate amount of Securities from time to time endorsed thereon
and may also provided that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount or changes in the rights of holders of Securities
represented thereby, shall be made in such manner and by such person or persons
as shall be specified therein.
(c) The Trustee's Certificate of Authentication on all Securities
shall be in substantially the following form:
"This is one of the Securities of the series designated therein
described in the within-mentioned Indenture.
________________________,
as Trustee
----------
By__________________
Authorized Officer"
------------------
7
<PAGE>
Section 2.02. 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 resolution of the Board of Directors 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 all other Securities);
(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 Section 2.06, 2.07, 2.08, 3.03, 3.06 or 10.04);
(3) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(4) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and, if other than as set forth in
Section 2.04, the record dates for the determination of holders to whom
interest is payable;
(5) in addition to the office or agency of the Company in the Borough
of Manhattan, The City of New York required to be maintained pursuant to
Section 4.02, any other place or places where the principal of, and
premium, if any, and any interest on Securities of the series shall be
payable;
(6) the Specified Currency of the Securities of the series;
(7) the currency or currencies in which payments on the Securities of
the series are payable, if other
8
<PAGE>
than the Specified Currency;
(8) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price at which or
process by which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) 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
6.01;
(12) if other than the Specified Currency, the coin or currency in
which payment of the principal of or interest on the Securities of the
series shall be payable;
(13) if the principal of or interest on the Securities of the series
are to be payable, at the election of the Company or a holder thereof, in a
coin or currency other than the Specified Currency, the period or periods
within which, and the terms and conditions upon which, such election may be
made;
(14) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than the Specified Currency, the manner in
which such amounts shall be determined;
(15) any Events of Default with respect to the Securities of the
series, if not set forth herein;
(16) if other than the rate of interest stated in the title of the
Securities of the series, the
9
<PAGE>
applicable Overdue Rate;
(17) in the case of any series of non-interest bearing Securities,
the applicable dates for purposes of clause (a) of Section 5.01; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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 such resolution of the Board of Directors or in any such indenture
supplemental hereto.
Section 2.03. Authentication. 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. Except as otherwise provided in this Article Two, the Trustee
shall thereupon authenticate and deliver said Securities to or upon the written
order of the Company, signed by its President, its Chairman or any Vice Chairman
of the Board or one of its Vice Presidents and by its Treasurer or its
Comptroller. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors
relating thereto and, if applicable, an appropriate record of any action
taken pursuant to such resolution, in each case certified by the Secretary
or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate prepared in accordance with Section 14.05
which shall also state to the best knowledge of the signers of such
Certificate that no Event of Default with respect to any series of
Securities shall have occurred and be continuing; and
(4) an Opinion of Counsel prepared in accordance with Section 14.05
which shall also state
(a) that the form of such Securities has been established by or
pursuant to a resolution of
10
<PAGE>
the Board of Directors or by a supplemental indenture as permitted by
Section 2.01 in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.02 in conformity with
the provisions of this Indenture;
(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
legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles;
(d) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(e) that the issuance of such Securities will not contravene the
organizational certificate or by-laws of the Company or result in any
violation of any of the terms or provisions of any law or regulation
or of any indenture, mortgage or other agreement known to such Counsel
by which the Company or any of its Subsidiaries is bound; and
(f) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and the related
supplemental indenture, if any, have been complied with and that
authentication and delivery of such Securities and the execution and
delivery of the related supplemental indenture, if any, by the Trustee
will not violate the terms of this Indenture.
The Trustee shall have the right to decline to authenticate and
deliver or cause to be authenticated 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 or trustees,
executive committee, or a trust
11
<PAGE>
committee of directors or trustees and/or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing
Securityholders.
Section 2.04. Date and Denomination of Securities. The Securities of
-----------------------------------
each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 2.02. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple of $1,000. Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as the
officers of the Company executing the same may determine with the approval of
the Trustee.
Every Security shall be dated the date of its authentication.
The person in whose name any Security of a particular series is
registered at the close of business on any record date (as hereinafter defined)
with respect to any interest payment date for such series shall be entitled to
receive the interest payable on such interest payment date notwithstanding the
cancellation of such Security upon any registration of transfer or exchange
subsequent to the record date and prior to such interest payment date; provided,
--------
however, that if and to the extent that the Company shall default in the payment
- -------
of the interest due on such interest payment date, such defaulted interest shall
be paid to the persons in whose names Outstanding Securities of such series are
registered on a subsequent record date established by notice given by mail by or
on behalf of the Company to the holders of such Securities not less than 15 days
preceding such subsequent record date, such record date to be not less than five
days preceding the date of payment of such defaulted interest. Except as
otherwise specified as contemplated by Section 2.02 for Securities of a
particular series, the term "record date" as used in this Section with respect
to any regular interest payment date, shall mean, the first day of the calendar
month if such interest payment date is the fifteenth day of such calendar month,
and shall mean the fifteenth day of the calendar month preceding such interest
payment date if such interest payment date is the first day of a calendar month,
whether or not such day shall be a day on which banking institutions in The City
of New York are authorized or required by law or executive order to close or
remain closed.
Interest on the Securities may at the option of
12
<PAGE>
the Company be paid by check mailed to the persons entitled thereto at their
respective addresses as such appear on the registry books of the Company.
Section 2.05. Execution of Securities. The Securities shall be
-----------------------
signed in the name and on behalf of the Company by the manual or facsimile
signature of its President or its Chairman of the Board and its Treasurer or its
Secretary, under its corporate seal (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Securities as shall
bear thereon a certificate of authentication substantially in the form herein
recited, executed by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.
Section 2.06. Exchange and Registration of Transfer of Securities.
---------------------------------------------------
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be exchanged shall be surrendered, at the option of the holders thereof,
either at the office or agency designated and maintained by the Company for such
purpose in the Borough of Manhattan, The City of New York, in accordance with
the provisions of Section 4.02 or at any of such other offices or agencies as
may be designated and maintained by the Company for such purpose in accordance
with the provisions of Section 4.02, and the Company shall execute and register
and the Trustee shall authenticate and deliver in exchange therefor the Security
or Securities which the Securityholder making the exchange shall be entitled to
receive. Each person designated by the Company pursuant to the provisions of
13
<PAGE>
Section 4.02 as a person authorized to register and register transfer of the
Securities is sometimes herein referred to as a "Security registrar".
The Company shall keep, at each such office or agency, a register for
each series of Securities issued hereunder (the registers of all Security
registrars being herein sometimes collectively referred to as the "Security
register" or the "registry books of the Company") in which, subject to such
reasonable regulations as it may prescribe, the Company shall register
Securities and shall register the transfer of Securities as in this Article Two
provided. The Security register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times the Security registrar shall be open for inspection by the
Trustee and any Security registrar other than the Trustee. Upon due presentment
for registration or registration of transfer of any Security of any series at
any designated office or agency, the Company shall execute and register and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series for an equal
aggregate principal amount. Registration or registration of transfer of any
Security by any Security registrar in the registry books of the Company
maintained by such Security registrar, and delivery of such Security, duly
authenticated, shall be deemed to complete the registration or registration of
transfer of such Security.
The Company will at all times designate one person (who may be the
Company and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the holders of the Securities. The
Company shall act as such repository unless and until some other person is, by
written notice from the Company to the Trustee and each Security registrar,
designated by the Company to act as such. The Company shall cause each Security
registrar to furnish to such repository, on a current basis, such information as
to all registrations of transfer and exchanges effected by such registrar, as
may be necessary to enable such repository to maintain such master list on as
current a basis as is practicable.
No person shall at any time be designated as or act as a Security
registrar unless such person is at such time empowered under applicable law to
act as such under and to the extent required by applicable law and regulations.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so
14
<PAGE>
required by the Company or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer or exchange in form
satisfactory to the Company and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required to exchange or register a transfer
of (a) any Securities of any series for the period of 15 days next preceding the
selection of Securities of that series to be redeemed and thereafter until the
date of the mailing of a notice of redemption of Securities of that series
selected for redemption, or (b) any Securities selected, called or being called
for redemption in whole or in part except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In
-----------------------------------------------
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Security
shall, and in the case of a lost, stolen or destroyed Security may in its
discretion, execute and, upon the written request or authorization of any
officer of the Company, the Trustee shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously Outstanding,
in exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substituted Security shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security and the ownership thereof.
Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith. In case any Security which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted
15
<PAGE>
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and to the Trustee such security or indemnity as
may be required by them to save each of them harmless and, in case of
destruction, loss or theft, evidence satisfactory to the Company and the Trustee
of the destruction, loss or theft of such Security and the ownership thereof.
Every substituted Security issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly issued
hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.08. Temporary Securities. Pending the preparation of
--------------------
definitive Securities of any series the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any authorized
denomination and substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company. Every such temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Securities in lieu of which they are issued. Without
unreasonable delay the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor, at the option
of the holders thereof, either at the office or agency to be designated and
maintained by the Company for such purpose in the Borough of Manhattan, The City
of New York, in accordance with the provisions of Section 4.02 or at any of such
other offices or agencies as may be designated and maintained by the Company for
such purpose in accordance with the provisions of Section 4.02, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal
16
<PAGE>
amount of definitive Securities of the same series. Such exchange shall be made
by the Company at its own expense and without any charge therefor. 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
the same series authenticated and delivered hereunder.
Section 2.09. Cancellation of Securities Paid, etc. All Securities
------------------------------------
surrendered for the purpose of payment, redemption, repayment, exchange or
registration of transfer or for credit against any sinking fund shall, if
surrendered to the Company, any Security registrar, any paying agent or any
other agent of the Company or of the Trustee, be delivered to the Trustee and
promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly
cancelled by it, and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee may
destroy cancelled Securities and deliver a certificate of such destruction to
the Company or, at the written request of the Company, shall deliver cancelled
Securities to the Company. If the Company shall acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
Section 2.10. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 2.02 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 THREE
REDEMPTION OF SECURITIES; SINKING FUNDS
Section 3.01. Applicability of Article. The provisions of this
------------------------
Article shall be applicable, as the case may be, (i) to the Securities of any
series which are redeemable before their maturity and (ii) to any sinking fund
for the retirement of Securities of any series, in either case except as
otherwise specified as contemplated by Section 2.02 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
17
<PAGE>
referred to as an "optional sinking fund payment".
Section 3.02. Notice of Redemption; Selection of Securities. In case
---------------------------------------------
the Company shall desire to exercise any right to redeem all, or, as the case
may be, any part of, the Securities of any series in accordance with their
terms, it shall fix a date for redemption and shall mail a notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the holders of Securities of such series so to be redeemed as a
whole or in part at their last addresses as the same appear on the registry
books of the Company and to the Trustee, except as the resolutions adopted by
the Board of Directors to establish the terms of any series of Securities may
otherwise provide. Such mailing shall be by first class mail. The notice if
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the holder of
any Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which the Securities of such series are to
be redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that any interest accrued to the
date fixed for redemption will be paid as specified in said notice, and that on
and after said date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all the Securities of a series are
to be redeemed the notice of redemption shall specify the number or numbers of
the Securities of that series to be redeemed. In case any Security of a series
is to be redeemed in part only, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of that series in principal amount equal to the unredeemed portion
thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section 3.02, the Company will deposit with the
Trustee or with one or more paying agents (or if the Company is acting as its
own paying agent will segregate and hold in trust as provided in Section 4.04)
an amount of money sufficient to redeem on the redemption date all the
Securities or portions thereof so
18
<PAGE>
called for redemption, together with accrued interest to the date fixed for
redemption. If less than all the Securities of a series are to be redeemed the
Company will give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities of such
series to be redeemed and the Trustee shall select or cause to be selected, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Securities of that series or portions thereof to be redeemed. Securities of a
series may be redeemed in part only in multiples of the smallest authorized
denomination of that series.
Section 3.03. Payment of Securities Called for Redemption. If notice
-------------------------------------------
of redemption has been given as provided in Section 3.02 or Section 3.05, the
Securities or portions of Securities of the series with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities or
portions of such Securities, together with any interest accrued to said date)
any interest on the Securities of such series or portions of Securities of such
series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities at a place of payment in said notice specified, the
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption; provided, however, that any
-------- -------
semi-annual instalment of interest becoming due on or prior to the date fixed
for redemption shall be payable to holders of such Securities registered as such
on the relevant record date according to their terms.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the holder
thereof, at the expense of the Company, a new Security or Securities of the same
series, of authorized denominations, in aggregate principal amount equal to the
unredeemed portion of the Security so presented.
Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Securities. In lieu of making all or any part of any mandatory sinking fund
- ----------
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company,
19
<PAGE>
or (b) receive credit for the principal amount of Securities of that series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities; 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 mandatory sinking fund payment shall be reduced
accordingly.
Section 3.05. 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 a certificate signed by the
Treasurer or any Assistant Treasurer of the Company 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
(which cash may be deposited with the Trustee or with one or more paying agents,
or if the Company is acting as its own paying agent segregated and held in trust
as provided in Section 4.04) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 3.04 (which Securities, if not theretofore delivered, will accompany
such certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with resect to such series. Such
certificate shall also state that no Event of Default has occurred and is
continuing with respect to such series. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In the case of the failure of the Company to deliver such
certificate (or to deliver the Securities specified in this paragraph), the
sinking fund payment due on the next succeeding sinking fund payment date for
that series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of such Securities subject to a mandatory sinking fund payment
without the option to deliver or credit Securities as provided in Section 3.04
and without the right to make any optional sinking fund payment, if any, with
respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a less sum if the Company shall so
request or determine) with respect to the Securities of
20
<PAGE>
any particular series shall be applied by the Trustee (or by the Company if the
Company is acting as its own paying agent) on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund
payment date, on the next sinking fund payment date following the date of such
payment) to the redemption of such Securities at the redemption price specified
in such Securities for operation of the sinking fund together with accrued
interest, if any, to the date fixed for redemption. Any sinking fund moneys not
so applied or allocated by the Trustee (or by the Company if the Company is
acting as its own paying agent) to the redemption of Securities shall be added
to the next cash sinking fund payment received by the Trustee (or if the Company
is acting as its own paying agent, segregated and held in trust as provided in
Section 4.04) for such series and, together with such payment (or such amount so
segregated), shall be applied in accordance with the provisions of this Section
3.05. Any and all sinking fund moneys with respect to the Securities of any
particular series held by the Trustee (or if the Company is acting as its own
paying agent, segregated and held in trust as provided in Section 4.04) on the
last sinking fund payment date with respect to Securities of such series and not
held for the payment or redemption of particular Securities of such series shall
be applied by the Trustee (or by the Company if the Company is acting as its own
paying agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the
Securities of that series at maturity.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the last
paragraph of Section 3.02 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 3.02 except that the
notice of redemption shall also state that the Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
On or before each sinking fund payment date, the Company shall pay to
the Trustee in cash (or if the Company is acting as its own paying agent will
segregate and hold in trust as provided in Section 4.04) a sum equal to any
interest accrued to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section.
Neither the Trustee nor the Company shall redeem
21
<PAGE>
any Securities of a series with sinking fund moneys or mail any notice of
redemption of such Securities by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to such Securities, except that
if the notice of redemption of any such Securities shall theretofore have been
mailed in accordance with the provisions hereof, the Trustee (or the Company if
the Company is acting as its own paying agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of this
Article. Except as aforesaid, any moneys in the sinking fund for such series at
the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such default or Event of Default
-------- -------
shall have been cured or waived as provided herein, such moneys shall thereafter
be applied on the next sinking fund payment date for such Securities on which
such moneys may be applied pursuant to the provisions of this Section.
Section 3.06. Repayment at the Option of the Holder. Any series of
-------------------------------------
Securities may be made, by provision contained in or established pursuant to a
supplemental indenture or a resolution of the Board of Directors pursuant to
Section 2.02 hereof, subject to repayment, in whole or in part, at the option of
the holder on a date or dates specified prior to maturity, at a price equal to
100% of the principal amount thereof, together with accrued interest to the date
of repayment, on such notice as may be required, provided, however, that the
holder of a Security may only elect partial repayment in an amount that will
result in the portion of such Security that will remain Outstanding after such
repayment constituting an authorized denomination, or combination thereof, of
such Securities.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. 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, premium,
if any, and interest, if any, on each of the Securities of that series at the
places, at the respective
22
<PAGE>
times and in the manner provided in such Securities.
Section 4.02. Offices for Notices and Payments, etc. As long as any
-------------------------------------
of the Securities of a series remain Outstanding, the Company will designate and
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Securities of that series may be presented for payment, an office or
agency where the Securities of that series may be presented for registration of
transfer and for exchange as in this Indenture provided and an office or agency
where notices and demands to or upon the Company in respect of the Securities of
that series or of this Indenture may be served. In addition to such office or
offices or agency or agencies, the Company may from time to time designate and
maintain one or more additional offices or agencies within or outside the
Borough of Manhattan, The City of New York, where the Securities of that series
may be presented for registration of transfer or for exchange, and the Company
may from time to time rescind such designation, as it may deem desirable or
expedient. The Company will give to the Trustee written notice of the location
of each such office or agency and of any change of location thereof. In case the
Company shall fail to maintain any such office or agency in the Borough of
Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the principal office of the Trustee.
The Company hereby initially designates the office of the Trustee
located at 1 Chase Manhattan Plaza, Floor 1B, New York, New York 10081 as the
office or agency of the Company in the Borough of Manhattan, The City of New
York, where the Securities of each series may be presented for payment, for
registration of transfer and for exchange as in this Indenture provided and
where notices and demands to or upon the Company in respect of the Securities of
each series or of this Indenture may be served. The Company is also designated
as repository pursuant to Section 2.06 for the master list of the names and
addresses of the holders of the Securities of each series.
Section 4.03. Appointments to Fill Vacancies in Trustee's Office.
--------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a successor
trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
Section 4.04. Provision as to Paying Agent. (a) If the Company shall
----------------------------
appoint a paying agent other than the
23
<PAGE>
Trustee with respect to the Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 4.04,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest, if any, on
the Securities of such series (whether such sums have been paid to it
by the Company or by any other obligor on the Securities of such
series) in trust for the benefit of the holders of the Securities of
such series;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of, premium, if any, or interest, if
any, on the Securities of such series when the same shall be due and
payable; and
(3) that at any time during the continuance of any failure by the
Company (or by any other obligor on the Securities of such series)
specified in the preceding paragraph (2), such payment agent will,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by it.
(b) If the Company shall act as its own paying agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of, premium, if any, or interest, if any, on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the holders of
such Securities a sum sufficient to pay such principal, premium, if any, or
interest, if any, so becoming due and will promptly notify the Trustee of any
failure to take such action and of any failure by the Company (or by any other
obligor on the Securities of such series) to make any payment of the principal
of, premium, if any, or interest, if any, on the Securities of such series when
the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
24
<PAGE>
(d) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
Sections 12.03 and 12.04.
(e) Whenever the Company shall have one or more paying agents with
respect to the Securities of any series, it will, prior to each due date of the
principal of, premium, if any, or interest, if any, on the Securities of such
series, deposit with a designated paying agent a sum sufficient to pay the
principal, premium, if any, and interest, if any, so becoming due, such sum to
be held in trust for the benefit of the persons entitled to such principal,
premium, if any, or interest, if any, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of any failure so to act.
Section 4.05. Statement as to Compliance. The Company will furnish
--------------------------
to the Trustee on or before January 1, in each year (beginning with January 1,
1997) a brief certificate (which need not comply with Section 14.05) from the
principal executive, financial or accounting officer of the Company stating that
in the course of the performance by the signer of his duties as an officer of
the Company he would normally have knowledge of any default or non-compliance by
the Company in the performance of any terms, covenants or conditions of this
Indenture, stating whether or not he has knowledge of any such default or non-
compliance (without regard to any period of grace or requirement of notice
provided hereunder) and, if so, specifying each such default or non-compliance
of which the signer has knowledge and the nature thereof.
25
<PAGE>
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section 5.01. Securityholder Lists. If and so long as the Trustee
--------------------
shall not be the Security registrar for the Securities of any series, the
Company and any other obligor on the Securities will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the holders of the Securities of such
series pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-
annually not more than 15 days after each record date for the payment of
interest on such Securities, as hereinabove specified, as of such record date,
and on dates to be determined pursuant to Section 2.02 for non-interest bearing
Securities in each year, and (b) at such other times as the Trustee may request
in writing, within thirty days after receipt by the Company of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
Section 5.02. Reports by the Company. The Company covenants to file
----------------------
with the Trustee, within 15 days after the Company is required to file the same
with the Securities and Exchange Commission, copies of the annual reports and of
the information, documents and other reports that the Company may be required to
file with the Securities and Exchange Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 or pursuant to Section 314
of the Trust Indenture Act of 1939.
Section 5.03. Reports by the Trustee. Any Trustee's report required
----------------------
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before February 1 in each year beginning February 1, 1997, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
Section 6.01. Events of Default. The term "Event of Default"
-----------------
whenever used herein with respect to Securities of any series means any one of
the following events and such
26
<PAGE>
other events as may be established with respect to the Securities of such series
as contemplated by Section 2.02 hereof, continued for the period of time, if
any, and after the giving of notice, if any, designated in this Indenture or as
may be established with respect to such Securities as contemplated by Section
2.02 hereof, as the case may be, unless it is either inapplicable or is
specifically deleted or modified in the applicable resolution of the Board of
Directors or in the supplemental indenture under which such series of Securities
is issued, as the case may be, as contemplated by Section 2.02:
(a) default in the payment of any instalment of interest upon any
Security 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
(b) default in the payment of the principal of, or premium, if
any, on any Security of such series as and when the same shall become
due and payable whether at maturity, upon redemption, by declaration,
repayment or otherwise; or
(c) default in the making or satisfaction of any sinking fund
payment or analogous obligation as and when the same shall become due
and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in
respect of the Securities of such series contained in this Indenture
(other than a covenant or agreement in respect of the Securities of
such series a default in whose observance or performance is elsewhere
in this Section specifically dealt with) continued for a period of 60
days after the date on which written notice of such failure, requiring
the Company to remedy the same, shall have been given to the Company
by the Trustee by registered mail, or to the Company and the Trustee
by the holders of at least twenty-five percent in aggregate principal
amount of the Securities of such series at the time Outstanding; or
(e) an event of default with respect to any other series of
Securities issued or hereafter issued pursuant to this Indenture or as
defined in any indenture or instrument evidencing or under
27
<PAGE>
which the Company has at the date of this Indenture or shall hereafter
have outstanding any indebtedness for borrowed money shall happen and
be continuing and such other series of Securities or such
indebtedness, as the case may be, 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, and such
acceleration shall not be rescinded or annulled within ten days after
written notice thereof shall have been given to the Company by the
Trustee or to the Company and the Trustee by the holders of at least
twenty-five percent in aggregate principal amount of the Securities of
such series at the time Outstanding; provided, however, that if such
-------- -------
event of default with respect to such other series of Securities or
under such indenture or instrument, as the case may be, shall be
remedied or cured by the Company, or waived by the holders of such
other series of Securities or of such indebtedness, as the case may
be, 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
Securityholders of such series; and provided further that, subject to
-------- -------
the provisions of Sections 6.08 and 7.01, the Trustee shall not be
charged with knowledge of any such event of default or any remedy,
cure or waiver thereof or any such acceleration unless written notice
thereof shall have been given to the Trustee by the Company, by a
holder or an agent of a holder of any Securities of such other series
or of any such indebtedness, as the case may be, or by the trustee
then acting under this Indenture with respect to such other series of
Securities or under any indenture or other instrument, as the case may
be, under which such event of default shall have occurred, or by the
holders of at lest twenty-five percent in aggregate principal amount
of the Securities of such series at the time Outstanding; or
(f) 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 of the Company under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, and such
28
<PAGE>
decree or order shall have continued undischarged and unstayed for a
period of 60 days; or a decree or order of a court having jurisdiction
in the premises for the appointment of a receiver or liquidator or
trustee or assignee (or other 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 60 days; or
(g) 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 under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee (or other similar
official) in bankruptcy or insolvency of it or 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
or
(h) any other Event of Default provided in the applicable
resolution of the Board of Directors or in the supplemental indenture
under which such series of Securities is issued, as the case may be,
as contemplated by Section 2.02.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the holders of not less than
twenty-five percent in aggregate principal amount of the Securities of such
series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Securityholders of such series), may declare the
principal amount (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all the Securities of such series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the
Securities of such series contained to the contrary notwithstanding. This
provision, however, is subject to the
29
<PAGE>
condition that if, at any time after the principal amount (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of the
Securities of any series shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all of the Securities of such series and the principal
of, and premium, if any, on any and all Securities of such series which shall
have become due otherwise than by acceleration (with interest on overdue
installments of interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal at the Overdue Rate
applicable to such series, to the date of such payment or deposit) and all
amounts payable to the Trustee pursuant to the provisions of Section 7.06, and
any and all defaults under this Indenture with respect to such series of
Securities, other than the nonpayment of principal of and accrued interest on
Securities of such series which shall have become due solely by acceleration,
shall have been remedied or cured or waived or provision shall have been made
therefor to the satisfaction of the Trustee -- then and in every such case the
holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding, by written notice to the Company and to the Trustee,
may waive all default with respect to such series and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceeding shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceeding had been
taken.
Section 6.02. Payment of Securities on Default; Suit Therefor. The
-----------------------------------------------
Company covenants that (a) in case default shall be made in the payment of any
instalment of interest upon any Security of any series as and when the same
shall become due and payable, and such default shall have continued for a period
of 30 days, (b) in case default
30
<PAGE>
shall be made in the payment of the principal of, or premium, if any, on any
Security of any series as and when the same shall become due and payable,
whether at maturity of the Securities of that series or upon redemption or by
declaration, repayment or otherwise or (c) in case of default in the making or
satisfaction of any sinking fund payment or analogous obligation when the same
becomes due by the terms of the Securities of any series -- then, upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the holder
of any such Security (or holders of any series of Securities in the case of
clause (c) above) the whole amount that then shall have become due and payable
on any such Security (or Securities of any such series in the case of clause (c)
above) for principal, premium, if any, and interest, if any, with interest upon
the overdue principal and premium, if any, and (to the extent that payment of
such interest is enforceable under applicable law) upon the overdue installments
of interest, if any, at the Overdue Rate applicable to any such Security (or
Securities of any such series in the case of clause (c) above); and, in addition
thereto, such further amount as shall be sufficient to cover costs and expenses
of collection, and any further amounts payable to the Trustee pursuant to the
provisions of Section 7.06.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of any express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities of any
series under the Federal Bankruptcy Code or any other similar applicable Federal
or State law, or in case a receiver or trustee (or other similar official) shall
have been appointed for the property of the Company or such other obligor, or in
the case of any other similar judicial proceedings relative to the Company or
other obligor on the Securities of any series, or to the creditors or property
of the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or
31
<PAGE>
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal (or, if the Securities of any
series are Original Issue Discount Securities, such portion of the principal
amount as may be due and payable with respect to such series pursuant to a
declaration in accordance with Section 6.01), premium, if any, and interest, if
any, owing and unpaid in respect of the Securities of any series and, in case of
any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Securityholders of any series allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities of
any series, its or their creditors, or its or their property, and to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of costs and expenses of
collection, and any further amounts payable to the Trustee pursuant to the
provisions of Section 7.06 and incurred by it up to the date of such
distribution; and any receiver, assignee or trustee (or other similar official)
in bankruptcy or reorganization is hereby authorized by each of the
Securityholders 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
Securityholders, to pay to the Trustee costs and expenses of collection and any
further amounts payable to the Trustee pursuant to the provisions of Section
7.06 and incurred by it up to the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting any of
the Securities of any series or the rights of any holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series or the production thereof in
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the holders of the Securities in respect of which such
32
<PAGE>
action was taken. In any proceedings brought by the Trustee (and also any
proceedings in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture, to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities to which such proceedings relate, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys
------------------------------------------
collected by the Trustee pursuant to this Article shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, 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 pursuant to
the provisions of Section 7.06;
SECOND: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall not have become
due (at maturity, upon redemption, by declaration, repayment or
otherwise) and be unpaid, to the payment of interest, if any, on such
Securities, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the Overdue Rate applicable to such Securities, such payments to be
made ratably to the person entitled thereto;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become due
(at maturity, upon redemption, by declaration, repayment or
otherwise), to the payment of the whole amount then owing and unpaid
upon such Securities for principal, premium, if any, and interest, if
any, with interest on the overdue principal, and premium, if any, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest, if any, at the Overdue Rate
applicable to such Securities; and in case such moneys shall be
insufficient to pay in full the whole amounts so
33
<PAGE>
due and unpaid upon such Securities, then to the payment of such
principal, premium, if any, and interest, if any, without preference
or priority of principal, and premium, if any, over interest, if any,
or of interest, if any, over principal, and premium, if any, or of any
instalment of interest, if any, over any other instalment of interest,
if any, or of any such Security over any other such Security, ratably
to the aggregate of such principal, premium, if any, and accrued and
unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the
Company, it successors or assigns, or to whosoever may be lawfully
entitled to receive the same, or as a court of competent jurisdiction
may direct.
Section 6.04. Proceedings by Securityholders. No holder of any
------------------------------
Security of any series shall have any right by virtue of or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee (or other similar official), or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of default with respect to Securities of such series and
of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than twenty-five percent in aggregate principal amount of
the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, it being understood and intended,
and being expressly covenanted by the taker and holder of every Security with
every other taker and holder and the Trustee, that no one or more holders of
Securities of such series shall have any right in any manner whatever by virtue
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Securities of such series, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the matter herein
provided and for the equal, ratable and common benefit of all holders of
Securities of such series.
34
<PAGE>
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Security to receive payment of the principal of,
premium, if any, and interest, if any, on such Security, on or after the
respective due dates expressed in such Security, or upon redemption, by
declaration, repayment or otherwise, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such holder, and no provision of the Securities
of any series or of this Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest, if any, on the Securities of such series at the respective
places, at the respective times, at the respective rates and in the coin or
currency, therein and herein prescribed.
Section 6.05. Proceedings by Trustee. In case of an Event of Default
----------------------
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.06. Remedies Cumulative and Continuing. All powers and
----------------------------------
remedies given by this Article Six to the Trustee or to the Securityholders of
any series shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the holders of such Securities, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
holder of any such Securities to exercise any right or power accruing upon any
default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article Six or by law to the Trustee or to the
Securityholders of any series may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Securityholders of such
series.
Section 6.07. Direction of Proceedings and Waiver
-----------------------------------
35
<PAGE>
of Defaults by Securityholders. (a) The holders of a majority in aggregate
- ------------------------------
principal amount of the Securities of any series at the time Outstanding shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series;
provided, however, that (subject to the provisions of Section 7.01) the Trustee
- -------- -------
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceeding so directed would involve the Trustee in personal liability.
(b) Prior to any declaration accelerating the maturity of the
Securities of any series, the holders of a majority in aggregate principal
amount of the Securities of such series at the time Outstanding may on behalf of
the holders of all of the Securities of such series waive any past default or
Event of Default with respect to such series and its consequences except a
default in the payment of interest, if any, on, or the principal of or premium,
if any, on any Security of such series, or in the payment of any sinking fund
instalment or analogous obligation with respect to Securities of such series, or
in respect of a covenant or provision hereof which under Section 10.02 cannot be
modified or amended without the consent of the holder of each Security affected.
Upon any such waiver the Company, the Trustee and the holders of the Securities
of that series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as permitted by
this Section 6.07(b), said default or Event of Default shall for all purposes of
the Securities of such series and this Indenture be deemed to have been cured
and to be not continuing.
Section 6.08. Notice of Defaults. The Trustee shall, within 90 days
------------------
after the occurrence of a default with respect to the Securities of any series,
mail to all holders of Securities of such series, as the names and addresses of
such holders appear upon the registry books of the Company, notice of all
defaults with respect to such series known to the Trustee, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 6.08 being hereby defined to be
36
<PAGE>
the events specified in Section 6.01 or established with respect to such
Securities as contemplated by Section 2.02, not including the periods of grace,
if any, provided for therein or established with respect to such Securities as
contemplated by Section 2.02 and irrespective of the giving of the notices
specified in clauses (d) and (e) of Section 6.01 or established with respect to
such Securities as contemplated by Section 2.02); provided, however, that except
-------- -------
in the case of default in the payment of the principal of, premium, if any, or
interest, if any, on any of the Securities of such series or in the making of
any sinking fund instalment or analogous obligation with respect to such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the holders of Securities of
such series.
Section 6.09. Undertaking to Pay Costs. All parties to this
------------------------
Indenture agree, and each holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, omitted or suffered by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 6.09 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any holder of Securities of any series or group of such holders,
holding in the aggregate more than ten percent in principal amount of the
Outstanding Securities of such series or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of, premium,
if any, or interest, if any, on any Security on or after the due date expressed
in such Security, on or after the date fixed for redemption or repayment or
after such Security shall have become due by declaration.
37
<PAGE>
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of Trustee. With respect
--------------------------------------
to the holders of any series of Securities issued hereunder, the Trustee, prior
to the occurrence of an Event of Default with respect to the Securities of such
series and after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities of a series has occurred (which has not
been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture with respect to such series, 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.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all Events of
Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to the
Securities of a series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this
38
<PAGE>
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
omitted or suffered to be taken by it in good faith in accordance with the
direction of the holders of Securities of any series pursuant to Section
6.07 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to Securities
of such series.
None of the provisions of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or otherwise to incur any
personal financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
The provisions of this Section 7.01 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
Section 7.02. Reliance on Documents, Opinions, etc. In furtherance
------------------------------------
of and subject to the Trust Indenture Act of 1939, and subject to the provisions
of Section 7.01:
(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, 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an instrument signed in the name
of the Company by its President, its Chairman of the Board of any Vice
President and its Treasurer or its Comptroller (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of
the Board of Directors of the Company may be evidenced to
39
<PAGE>
the Trustee by a copy thereof certified by the Secretary, an Assistant
Secretary or an Attesting Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, omitted or suffered to be taken by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, omitted or
suffered by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any inquiry or
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note or other paper or document unless
requested in writing so to do by the holders of a majority in aggregate
principal amount of the Securities of any series affected then Outstanding;
provided, however, that if the payment within a reasonable time to the
-------- -------
Trustee of the costs and expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security conferred upon it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding; and the reasonable expense of such investigation shall be paid
by the Company, or, if paid by the Trustee, shall be repaid by the Company
upon demand; and
(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
40
<PAGE>
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 7.03. No Responsibility for Recitals, etc. The recitals
-----------------------------------
contained herein and in the Securities shall be taken as the statements of the
Company (except in the Trustee's certificates of authentication), and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
the Securities, provided that the Trustee shall not be relieved of its duty to
--------
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Company or any of the
Securities or of the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee and any agent of
-----------------------
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if
it were not Trustee or such agent.
Section 7.05. Moneys to be Held in Trust. Subject to the provisions
--------------------------
of Sections 12.03 and 12.04 hereof, all moneys received by the Trustee or any
paying agent shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon. So
long as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its President, Chairman or any Vice Chairman of
the Board, or any Vice President, Treasurer or Comptroller.
Section 7.06. Compensation and Expenses of Trustee. The Company
------------------------------------
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense,
41
<PAGE>
disbursement or advance as may arise from its negligence or bad faith. If any
property other than cash shall at any time be subject to the lien of this
Indenture, the Trustee, if and to the extent authorized by a receivership or
bankruptcy court of competent jurisdiction or by the supplemental instrument
subjecting such property to such lien, shall be entitled to make advances for
the purpose of preserving such property or of discharging tax liens or other
prior liens or encumbrances thereon. The Company also covenants to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee, arising out
of or in connection with the acceptance or administration of this trust and its
duties hereunder, including the costs and expenses of defending itself against
any claim of liability in the premises. The obligations of the Company under
this Section 7.06 to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Securities.
Section 7.07. Officers' Certificate as Evidence. Subject to the
---------------------------------
provisions of Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, omitting or suffering any action to be
taken hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, omitted or suffered by it under the
provisions of this Indenture upon the faith thereof.
Section 7.08. Indentures Not Creating Potential Conflicting Interests
-------------------------------------------------------
for the Trustee. The following indentures are hereby specifically described for
- ---------------
the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: this
Indenture with respect to the Securities of any other series.
Section 7.09. Eligibility of Trustee. The Trustee hereunder shall at
----------------------
all times be a corporation
42
<PAGE>
organized and doing business under the laws of the United States or any state,
which (a) is authorized under such laws to exercise corporate trust powers and
(b) is subject to supervision or examination by Federal or State authority and
(c) shall have at all times a combined capital and surplus of not less than
fifty million dollars. If such corporation publishes reports of condition at
least annually, pursuant to law, or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 7.09,
the combined capital and surplus of such corporation at any time shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.09, the Trustee
shall resign immediately in the manner and with the effect specified in Section
7.10.
The provisions of this Section 7.09 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
Section 7.10. Resignation or Removal of Trustee. (a) The Trustee, or
---------------------------------
any trustee or trustees hereafter appointed, may at any time resign with respect
to any one or more or all series of Securities by giving written notice of
resignation to the Company and by mailing notice thereof to the holders of the
applicable series of Securities at their addresses as they shall appear on the
registry books of the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee or trustees with respect to
the applicable series by written instrument, in duplicate, executed by order of
the Board of Directors of the Company, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed with respect to any series and
have accepted appointment within 60 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, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.09,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur --
43
<PAGE>
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Company or
by any Securityholder who has been a bona fide holder of a Security or
Securities of such series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and Section 310(a) of the Trust Indenture
Act of 1939 with respect to any series of Securities and shall fail to
resign after written request therefor by the Company or by any such
Securityholder, or
(3) the Trustee shall become incapable of acting with respect to
any series of Securities, 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, the Company may remove the Trustee with respect to such
series and appoint a successor trustee with respect to such series by written
instrument, in duplicate, executed by order of the Board of Directors of the
Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide holder of a Security or Securities of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee with respect to such series.
(c) The holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all series
at the time Outstanding may at any time remove the Trustee with respect to the
applicable series or all series, as the case may be, and appoint with respect to
the applicable series or all series, as the case may be, a successor trustee by
written notice of such action to the Company, the Trustee and the successor
trustee.
44
<PAGE>
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 7.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
7.11.
Section 7.11. Acceptance by Successor Trustee. Any successor trustee
-------------------------------
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to any or all applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment (or due provision therefor) of any amounts then due
it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers with respect to
such series of the trustee so ceasing to act. Upon request of any such
successor trustee, the Company shall execute any and all instruments in writing
in order more fully and certainly to vest in and confirm to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
7.06.
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
predecessor trustee and each successor trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessors
trustee with respect to the Securities of any series as to which the predecessor
trustee is not retiring shall continue to be vested in the predecessor trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute
45
<PAGE>
such trustees co-trustees of the same trust and that each such trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such trustee.
No successor trustee with respect to a series of Securities shall
accept appointment as provided in this Section 7.11 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee with respect to
any series as provided in this Section 7.11, the Company shall mail notice of
the succession of such trustee hereunder to the holders of Securities of such
series at their addresses as they shall appear on the registry books of the
Company. If the Company fails to mail such notice within ten days after the
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Company.
Section 7.12. Succession by Merger, etc. Any corporation into which
--------------------------
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor to the Trustee hereunder,
provided such corporation shall be qualified under Section 310(b) of the Trust
Indenture Act of 1939 and eligible under the provisions of Section 7.09, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trust created by this Indenture with respect to one or more series of
Securities, any of such Securities shall have been authenticated but not
delivered, any such successor to the Trustee by merger, conversion or
consolidation may adopt the certificate of authentication of any predecessor
trustee, and deliver such Security so authenticated; and in case at that time
any of such Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of such successor to
the Trustee or, if such successor to the Trustee is a successor by merger,
conversion or consolidation the name of any predecessor hereunder; and in all
such cases such certificate shall have
46
<PAGE>
the full force which it is anywhere in such Securities or in this Indenture
provided that the certificate of the Trustee shall have.
Section 7.13. Other Matters Concerning the Trustee. The principal
------------------------------------
corporate trust office of the Trustee at the date of this Indenture is located
at 4 Chase MetroTech Center, Brooklyn, New York, 11245 Attn: Institutional
Trust.
Section 7.14. Appointment of Authenticating Agent. The Trustee may
-----------------------------------
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 2.07, 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
47
<PAGE>
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders 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 Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
48
<PAGE>
Dated:
This is one of the Securities described in the within-mentioned
Indenture.
The Chase Manhattan Bank, National Association,
As Trustee
By_____________________,
Authorized Signatory
By_____________________,
Authorized Signatory
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders. Whenever in this Indenture
-------------------------
it is provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called held in accordance
with the provisions of Article Nine, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of such Securityholders.
Section 8.02. Proof of Execution by Securityholders. Subject to the
-------------------------------------
provisions of Section 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be reasonably satisfactory to the
Trustee. The ownership of Securities shall be proved by the registry books of
the Company or by a certificate of the person
49
<PAGE>
designated by the Company to act as repository in accordance with the provisions
of Section 2.06.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
The Company may set a record date for purposes of determining the
identity of holders of Securities of any series entitled to vote or consent to
any action referred to in Section 8.01, which record date may be set at any time
or from time to time by notice to the Trustee, for any date or dates (in the
case of any adjournment or reconsideration) not more than 60 days nor less than
five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, with respect to Securities of any
series, only holders of Securities of such series of record on such record date
shall be entitled to so vote or give such consent or revoke such vote or
consent.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the
------------------------------
Trustee and any agent of the Company or of the Trustee may deem the person in
whose name any Security shall be registered upon the books of the Company to be,
and may treat him as, the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and interest, if any, on such Security and for
all other purposes; and neither the Company nor the Trustee nor any agent of the
Company or of the Trustee shall be affected by any notice to the contrary. All
such payments so made to any holder for the time being, or upon his order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for moneys payable upon any such Security.
Section 8.04. Company-Owned Securities Disregarded. In determining
------------------------------------
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any demand, request, notice, direction, consent or waiver
under this Indenture, Securities which are owned by the Company or any other
obligor on the Securities with respect to which such determination is being made
or by any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided, that for the purposes of determining whether the
--------
Trustee shall be protected in
50
<PAGE>
relying on any such demand, request, notice, direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 8.04 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such Securities
and that the pledgee is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
such other obligor. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
Section 8.05. Revocation of Consents; Future Holders Bound. At any
--------------------------------------------
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any holder
of a Security which is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice
with the Trustee at its principal office and upon proof of holding as provided
in Section 8.02, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders of such
Security, irrespective of whether or not any notation in regard thereto is made
upon such Security or any Security issued in exchange or substitution therefor.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings. A meeting of holders of
--------------------
Securities of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article Nine for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Six;
(2) to remove the Trustee and nominate a
51
<PAGE>
successor trustee pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities
of any or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any
---------------------------
time call a meeting of holders of Securities of any or all series to take any
action specified in Section 9.01, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the holders of Securities of any or all series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to holders of
Securities of each series affected at their addresses as they shall appear on
the registry books of the Company. Such notice shall be mailed not less than 20
nor more than 90 days prior to the date fixed for the meeting.
Section 9.03. Call of Meetings by Company or Securityholders. In
----------------------------------------------
case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least ten percent in aggregate principal amount
of the Securities then Outstanding of any series that may be affected by the
action proposed to be taken at the meeting, shall have requested the Trustee to
call a meeting of the holders of Securities of all series that may be so
affected, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders, in the amount specified above, may determine
the time and the place in said Borough of Manhattan for such meeting and may
call such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at
-------------------------
any meeting of Securityholders a person shall (a) be a holder of one or more
Securities with respect to which such meeting is being held or (b) be a person
appointed by an instrument in writing as proxy by a holder
52
<PAGE>
of one or more such Securities. The only persons who shall be entitled to be
present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of
-----------
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holder
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders, as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities with respect to which such meeting is being held or proxy shall be
entitled to one vote for each $1,000 principal amount (in the case of Original
Issue Discount Securities, such principal amount to be determined as provided in
the definition of "Security or Securities; Outstanding" in Section 1.01) of such
Securities held or represented by him; provided, however, that no vote shall be
-------- -------
cast or counted at any meeting in respect of any such Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of such
Securities held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other such Securityholders. Any meeting
of holders of Securities with respect to which a meeting was duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time by a majority of those present, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any
------
meeting of holders of Securities with respect to which such meeting is being
held shall be by
53
<PAGE>
written ballots on which shall be subscribed the signatures of such holders of
Securities or of their representatives by proxy and the principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition of "Security or Securities;
Outstanding" in Section 1.01) and number or numbers of such Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 9.02. The record shall show the
principal amount of the Securities (in the case of Original Issue Discount
Securities, such principal amount to be determined as provided in the definition
of "Security or Securities; Outstanding" in Section 1.01) voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. No Delay of Rights by Meeting. Nothing in this Article
-----------------------------
Nine contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Securityholders of any or all such series under any of the
provisions of this Indenture or of the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
-------------------------------
54
<PAGE>
Consent of Securityholders. The Company, when authorized by resolution of the
- --------------------------
Board of Directors, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Eleven hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection 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 for the benefit of such series) as the Board of
Directors of the Company and the Trustee shall consider to be for the
protection of the holders of such Securities, and to make the occurrence,
or the occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, however, that in respect
-------- -------
of any such additional covenant, restriction or condition such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities of the
same series issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(d) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01
and 2.02;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein
55
<PAGE>
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture which shall not
adversely affect the interests of the holders of any Securities; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series or to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 7.11.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 10.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 10.02.
Section 10.02. Supplemental Indentures with Consent of
---------------------------------------
Securityholders. With the consent (evidenced as provided in Section 8.01 and
- ---------------
8.02) of the holders of not less than 66-2/3% in the aggregate principal amount
of the Securities of each series (each series voting as a class) affected by
such supplemental indenture at the time Outstanding, the Company, when
authorized by resolution of the Board of Directors, and the Trustee may from
time to time and at any time 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 any supplemental
indenture or of modifying in any manner the rights of the holders of the
Securities or each such series of the Coupons appertaining to such Securities;
provided, however, that no such supplemental indenture shall (i) extend the
- -------- -------
fixed maturity of any Security, or reduce the rate or extend the time of payment
of interest, if any, thereon, or reduce the principal amount or premium, if any,
thereof, or make the principal thereof or premium, if any, or interest, if any,
thereon payable in any coin or currency other than that
56
<PAGE>
provided in any Security or Coupon, or impair the right of any holder of a
Security to institute suit for any such payment, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 6.01 or
adversely affect the right of repayment, if any, at the option of the holder, or
extend the time, or reduce the amount of any payment to any sinking fund or
analogous obligation relating to any Security, (ii) reduce the percentage in
principal amount of Securities of any series, the holders of which are required
to consent to any such supplemental indenture or any waiver of any past default
or Event of Default pursuant to Section 6.07(b), or (iii) modify any provision
of Section 6.07(b) or 10.02 (except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each Security so affected), without,
in the case of each of the foregoing clauses (i), (ii) and (iii), the consent of
the holder of each Security so affected. 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.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors authorizing the execution and delivery of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 10.03. Compliance with Trust Indenture Act; Effect of
----------------------------------------------
Supplemental Indentures. Any supplemental indenture executed pursuant to the
- -----------------------
provisions of this Article Ten shall comply with the Trust Indenture Act of
57
<PAGE>
1939, as then in effect. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Ten, this Indenture shall be deemed
to be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holder of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 10.04. Notation on Securities. Securities authenticated and
----------------------
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture to be
------------------------------------------------------
Furnished Trustee. The Trustee, subject to the provisions of Sections 7.01 and
- -----------------
7.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc., Except Under
-----------------------------------------------
Certain Conditions. The Company covenants that it will not merge or consolidate
- ------------------
with any other Person or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any other Person, unless (i) either the
Company shall be the continuing corporation, or the successor Person (if other
than the Company) shall be a corporation organized and existing under the laws
of the United States of America or a state thereof and such corporation shall
expressly assume the due and punctual payment of the principal of, and premium,
if any, and
58
<PAGE>
interest, if any, on all the Securities according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Company by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, and (ii) the Company or such successor corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale,
conveyance, transfer or other disposition, be in default in the performance of
any such covenant or condition. In the event of any such sale, conveyance (other
than by way of lease), transfer or other disposition, the predecessor company
may be dissolved, wound up and liquidated at any time thereafter.
Section 11.02. Successor Corporation to be Substituted. In case of
---------------------------------------
any such consolidation, merger, sale, conveyance (other than by way of lease),
transfer or other disposition, and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the Company,
and the Company shall be relieved of any further obligation under this Indenture
and under the Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of GE Global
Insurance Holding Corporation, any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
Section 11.03. Documents to be Given Trustee.
-----------------------------
59
<PAGE>
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other disposition, and
any such assumption, comply with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture. When (a) the Company shall
----------------------
deliver to the Trustee for cancellation all Securities theretofore authenticated
(other than any Securities which shall have been destroyed, lost or stolen or in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid, pursuant to the
provisions of Section 2.07) and not theretofore cancelled, or (b) all the
Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay at maturity or upon redemption all of the Securities (other
than any (i) Securities which shall have been mutilated, destroyed, lost or
stolen and in lieu of or in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant to the
provisions of Section 2.07 or (ii) Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 12.04) not theretofore cancelled or delivered to the Trustee
for cancellation, including principal, premium, if any, and interest, if any,
due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect (except as to (i) rights of registration of
transfer and exchange of Securities, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive
payments of principal thereof and interest thereon, and remaining rights of the
holders to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder and (v) the rights of the
Securityholders as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them), and the Trustee, on
demand of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture, the
Company, however, hereby agreeing to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
60
<PAGE>
Section 12.02. Deposited Moneys to be Held in Trust by Trustee. All
-----------------------------------------------
moneys deposited with the Trustee pursuant to the provisions of Section 12.01
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest, if any.
Section 12.03. Paying Agent to Repay Moneys Held. Upon the
---------------------------------
satisfaction and discharge of this Indenture all moneys then held by any paying
agent of the Securities (other than the Trustee) shall, upon demand of the
Company, be repaid to it or paid to the Trustee, and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
Section 12.04. Return of Unclaimed Moneys. Any moneys deposited with
--------------------------
or paid to the Trustee for payment of the principal of, premium, if any, or
interest, if any, on Securities of any series and not applied but remaining
unclaimed by the holders of Securities of that series for six years after the
date upon which the principal of, premium, if any, or interest, if any, on such
Securities, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee on written demand; and the holder of any
such Securities shall thereafter look only to the Company for any payment which
such holder may be entitled to collect.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of, premium, if any, or interest,
if any, on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute
61
<PAGE>
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Securities.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's Successors. All the
------------------------------------------
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
Section 14.02. Official Acts by Successor Corporation. Any act or
--------------------------------------
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
Section 14.03. Addresses for Notices, etc. Any notice or demand
--------------------------
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Securities on the Company may be
given or served by being deposited postage prepaid by first class mail in a post
office letter box addressed (until another address in filed by the Company with
the Trustee) to GE Global Insurance Holding Corporation, 5200 Metcalf, Overland
Park, Kansas 66202. Any notice, direction, request or demand by any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the principal
office of the Trustee, addressed to the attention of its corporate trust office
as specified in Section 7.13 hereof.
Section 14.04. New York Contract. This Indenture and each Security
-----------------
shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
Section 14.05. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture
62
<PAGE>
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include: (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinion contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 14.06. Legal Holidays. In any case where the date of
--------------
maturity of interest, if any, on or principal of, or premium, if any, on the
Securities or the date fixed for redemption or repayment of any Security will be
in The City of New York, New York, a Saturday, a Sunday, a legal holiday or a
day on which banking institutions are authorized or required by law or executive
order to close or remain closed, then payment of such interest, if any, on or
principal of or premium, if any, on the Securities need not be made on such date
but may be made on the next succeeding day not in such city, a Saturday, a
Sunday, a legal holiday or a day on which banking institutions are authorized or
required by law or executive order to close or remain closed, with the same
force and effect as if made on the date of maturity or a date fixed for
redemption or repayment, and no interest shall accrue for the period from and
after such date.
Section 14.07. Securities in a Specified Currency other than Dollars.
-----------------------------------------------------
Unless otherwise specified as contemplated by Section 2.02 with respect to a
particular series of Securities, whenever for purposes of this Indenture any
action may be taken by the holders of a specified percentage in aggregate
principal amount of Securities of all series or all series affected by a
particular action at the time Outstanding and, at such time, there are
Outstanding any Securities of any series which are denominated in a Specified
Currency other than Dollars (including European Currency Units ("ECU")), then
the principal amount of Securities of such series which shall be
63
<PAGE>
deemed to be Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount of such Specified
Currency at the Market Exchange Rate. For purposes of this Section 14.07, Market
Exchange Rate shall mean the noon Dollar buying rate in New York City for cable
transfers of the Specified Currency published by the Federal Reserve Bank of New
York; provided, however, in the case of ECUs, Market Exchange Rate shall mean
the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the European
Communities (such publication or any successor publication, the "Journal"). If
such Market Exchange Rate is not available for any reason with respect to such
Specified Currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York
or, in the case of ECUs, the rate of exchange from one or more major banks in
The City of New York or in the country of issue of the currency in question,
which for purposes of the ECU shall be Brussels, Belgium, or such other
quotations or, in the case of ECU, rates of exchange as the Trustee shall deem
appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated in
a Specified Currency other than Dollars in connection with any action taken by
holders of Securities pursuant to the terms of this Indenture, including,
without limitation, any determination contemplated in Section 6.01(d) or (e).
All decisions and determination of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Securityholders.
Section 14.08. Trust Indenture Act to Control. If and to the extent
------------------------------
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the Trust Indenture Act of 1939, such imposed duties or incorporated provision
shall control.
Section 14.09. Table of Contents, Headings, etc. The table of
--------------------------------
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of
64
<PAGE>
the terms or provisions hereof.
Section 14.10. Execution in Counterparts. This Indenture may be
-------------------------
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 14.11. Separability; Benefits. 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.
Nothing in this Indenture or in the Securities, expressed or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, and the holders of the Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
65
<PAGE>
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 February 1, 1996.
GE GLOBAL INSURANCE HOLDING
CORPORATION
/s/ James Dore
By________________________
[CORPORATE SEAL] Name: James Dore
Title: Vice President and Chief Financial Officer
Attest:
/s/ John M. Connelly
By________________________
Name: John M. Connelly
Title: Vice President and General Counsel
THE CHASE MANHATTAN BANK,
NATIONAL ASSOCIATION
/s/ Valerie Dunbar
By________________________
Name: Valerie Dunbar
[CORPORATE SEAL] Title: Vice President
Attest:
/s/ Gemmel Richards
By________________________
Name: Gemmel Richards
Title: Assistant Treasurer
66
<PAGE>
STATE OF KANSAS )
) ss.:
COUNTY OF JOHNSON )
On this 16th day of February, 1996 before me personally came John M.
Connelly to me personally known, who, being by me duly sworn, did depose and say
that he resides at Belton, Missouri, that he is Senior Vice President, General
Counsel and Secretary of GE Global Insurance Holding Corporation, one of the
corporations described in and which executed the above instrument; that he knows
the corporate 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.
[NOTARIAL SEAL]
/s/ Kathleen A. Quinn
_________________________
Notary Public
67
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
On this 23rd day of February, 1996 before me personally came Valerie
Dunbar to me personally known, who, being by me duly sworn, did depose and say
that she resides at Brooklyn, New York, that she is a Vice President of The
Chase Manhattan Bank, National Association, one of the corporations described in
and which executed the above instrument; that she knows the corporate 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 she signed her name thereto by like authority.
[NOTARIAL SEAL]
/s/ Margaret M. Price
_________________________
Notary Public
68
<PAGE>
Exhibit 5
May 15, 2000
GE Global Insurance Holding Corporation
5200 Metcalf
Overland Park, Kansas 66201
Ladies and Gentlemen:
We have acted as counsel to GE Global Insurance Holding Corporation, a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended, relating to the issuance by the Company of
$2,000,000,000 aggregate principal amount of senior, unsecured debt securities
of the Company (the "Debt Securities"). The Debt Securities will be issued
under an Indenture dated as of February 1, 1996 between the Company and The
Chase Manhattan Bank, as Trustee (the "Indenture").
We have examined the Registration Statement and the Indenture. We also
have examined the originals, or duplicates or certified or conformed copies, of
such records, agreements, instruments and other documents and have made such
other and further investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates of public officials and of
officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. We also have assumed that the Indenture is the valid and legally
binding obligation of the Trustee.
Based upon the foregoing, and assuming (a) the taking of all necessary
corporate action to approve the issuance and terms of the Debt Securities, the
terms of any offering thereof and related matters by the Board of Directors of
the Company, a duly constituted and acting committee of such Board or duly
authorized officers of the Company (such Board of Directors, committee or
authorized officers being hereinafter referred to as the "Board") and (b) the
due execution, authentication, issuance and delivery of the Debt Securities,
<PAGE>
-2-
GE Global Insurance
Holding Corporation May 15, 2000
upon payment of the consideration therefor provided for in the applicable
definitive purchase, underwriting or similar agreement approved by the Board and
otherwise in accordance with the provisions of the Indenture and such agreement,
the Debt Securities will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms.
Our opinion set forth above is subject to the effects of (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the federal law of the United States and the Delaware General
Corporation Law.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent; provided, however, that we hereby
consent to the filing of this opinion letter as an Exhibit 5 to the Registration
Statement and to the use of our name under the caption "Legal Matters" in the
Prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE>
EXHIBIT 23.1
The Board of Directors
GE Global Insurance Holding Corporation:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
KPMG LLP
Kansas City, Missouri
May 15, 1999
<PAGE>
Exhibit 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
GE Global Insurance Holding Corporation
(Exact name of obligor as specified in its charter)
Delaware 95-3435367
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
5200 Metcalf
Overland Park, Kansas 66201
(Address of principal executive offices) (Zip Code)
-------------------------------------
Debt Securities
(Title of the indenture securities)
-------------------------------------
<PAGE>
-2-
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 28th day of April, 2000.
THE CHASE MANHATTAN BANK
By /s/ James P. Freeman
-----------------------------
James P. Freeman
Vice President
<PAGE>
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 28th day of April, 2000.
THE CHASE MANHATTAN BANK
By
----------------------------
James P. Freeman
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1999,
in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .............................. $ 13,271
Interest-bearing balances ...................... 30,165
Securities:
Held to maturity securities ......................... 724
Available for sale securities ....................... 54,770
Federal funds sold and securities purchased under
agreements to resell ........................... 26,694
Loans and lease financing receivables:
Loans and leases, net of unearned income ....... $132,814
Less: Allowance for loan and lease losses ...... 2,254
Less: Allocated transfer risk reserve .......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ......................... 130,560
Trading Assets ...................................... 53,619
Premises and fixed assets (including capitalized
leases) ........................................ 3,359
Other real estate owned ............................. 29
Investments in unconsolidated subsidiaries and
associated companies ........................... 186
Customers' liability to this bank on acceptances
outstanding .................................... 608
Intangible assets ................................... 3,659
Other assets ........................................ 14,554
--------
TOTAL ASSETS ........................................ $332,198
========
</TABLE>
- 4 -
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
Deposits
<S> <C> <C>
In domestic offices ........................................ $ 102,421
Noninterest-bearing ............................. $ 41,580
Interest-bearing ................................ 60,841
In foreign offices, Edge and Agreement
subsidiaries and IBF's .......................... 108,233
Noninterest-bearing .................................. $ 6,061
Interest-bearing ................................ 102,172
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................. 47,425
Demand notes issued to the U.S. Treasury ........................ 100
Trading liabilities ............................................. 33,626
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 3,964
With a remaining maturity of more than one year
through three years ................................... 14
With a remaining maturity of more than three years ......... 99
Bank's liability on acceptances executed and outstanding ........ 608
Subordinated notes and debentures ............................... 5,430
Other liabilities ............................................... 11,886
TOTAL LIABILITIES ............................................... 313,806
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................... 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ....... 11,066
Undivided profits and capital reserves .......................... 7,376
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (1,277)
Accumulated net gains (losses) on cash flow hedges .............. 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,392
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $ 332,198
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. &
Controller of the above-named bank, do
hereby declare that this Report of
Condition has been prepared in
conformance with the instructions issued
by the appropriate Federal regulatory
authority and is true to the best of my
knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to
the correctness of this Report of
Condition and declare that it has been
examined by us, and to the best of our
knowledge and belief has been prepared
in conformance with the instructions
issued by the appropriate Federal
regulatory authority and is true and
correct.
WILLIAM B. HARRISON, JR. )
HELENE L. KAPLAN ) DIRECTORS
HENRY B. SCHACHT )
-5-
