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EXHIBIT 4.1
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INDENTURE
DATED AS OF MARCH 27, 1998
BETWEEN
TRENWICK GROUP INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
$75,000,000
6.70% SENIOR NOTES DUE APRIL 1, 2003
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions................................................. 1
ARTICLE II
NOTES
SECTION 2.01. Forms Generally............................................. 7
SECTION 2.02. Execution and Authentication................................ 7
SECTION 2.03. Form and Payment............................................ 8
SECTION 2.04. Legends..................................................... 8
SECTION 2.05. Global Note................................................. 8
SECTION 2.06. Interest.................................................... 9
SECTION 2.07. Transfer and Exchange....................................... 10
SECTION 2.08. Replacement Notes........................................... 11
SECTION 2.09. Treasury Notes.............................................. 12
SECTION 2.10. Temporary Notes............................................. 12
SECTION 2.11. Cancellation................................................ 12
SECTION 2.12. Defaulted Interest.......................................... 13
SECTION 2.13. CUSIP Numbers............................................... 13
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, and Interest and Additional 14
Interest....................................................
SECTION 3.02. Offices for Notices and Payments, etc. ..................... 14
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.......... 15
SECTION 3.04. Provision as to Paying Agent................................ 15
SECTION 3.05. Certificate to Trustee...................................... 16
SECTION 3.06. Compliance with Consolidation Provisions.................... 16
SECTION 3.07. Corporate Existence......................................... 16
SECTION 3.08. Limitation on Liens......................................... 16
SECTION 3.09. Limitation on Disposition of Capital Stock of Significant 17
Subsidiaries................................................
SECTION 3.10. Payment Upon Resignation or Removal......................... 18
SECTION 3.11. Taxes and Other Claims...................................... 18
ARTICLE IV
NOTEHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Noteholders' Lists.......................................... 18
SECTION 4.02. Preservation and Disclosure of Lists........................ 19
SECTION 4.03. Reports of the Company...................................... 20
SECTION 4.04. Reports by the Trustee...................................... 21
ARTICLE V
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default........................................... 21
SECTION 5.02. Payment of Notes on Default; Suit Therefor.................. 23
SECTION 5.03. Limitation on Suits......................................... 24
SECTION 5.04. Application of Moneys Collected by Trustee.................. 25
SECTION 5.05. Proceedings by Noteholders.................................. 25
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SECTION 5.06. Proceedings by Trustee...................................... 26
SECTION 5.07. Remedies Cumulative and Continuing.......................... 26
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority 27
of Noteholders..............................................
SECTION 5.09. Notice of Defaults.......................................... 27
SECTION 5.10. Undertaking to Pay Costs.................................... 28
SECTION 5.11. Waiver of Stay or Extension Laws............................ 28
SECTION 5.12. Delay or Omission Not Waiver................................ 28
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee...................... 29
SECTION 6.02. Reliance on Documents, Opinions, etc. ...................... 30
SECTION 6.03. No Responsibility for Recitals, etc. ....................... 31
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer 31
Agents or Registrar May Own Notes...........................
SECTION 6.05. Moneys to be Held in Trust.................................. 32
SECTION 6.06. Compensation and Expenses of Trustee........................ 32
SECTION 6.07. Officers' Certificate as Evidence........................... 33
SECTION 6.08. Conflicting Interest of Trustee............................. 33
SECTION 6.09. Eligibility of Trustee...................................... 33
SECTION 6.10. Resignation or Removal of Trustee........................... 34
SECTION 6.11. Acceptance by Successor Trustee............................. 35
SECTION 6.12. Succession by Merger, etc. ................................. 35
SECTION 6.13. Limitation on Rights of Trustee as a Creditor............... 36
SECTION 6.14. Authenticating Agents....................................... 36
ARTICLE VII
CONCERNING THE NOTEHOLDERS
SECTION 7.01. Action by Noteholders....................................... 37
SECTION 7.02. Proof of Execution by Noteholders........................... 38
SECTION 7.03. Who Are Deemed Absolute Owners.............................. 38
SECTION 7.04. Notes Owned by Company Deemed Not Outstanding............... 38
SECTION 7.05. Revocation of Consents; Future Holders Bound................ 39
ARTICLE VIII
NOTEHOLDERS' MEETINGS
SECTION 8.01. Purpose of Meetings......................................... 39
SECTION 8.02. Call of Meetings by Trustee................................. 40
SECTION 8.03. Call of Meetings by Company or Noteholders.................. 40
SECTION 8.04. Qualifications for Voting................................... 40
SECTION 8.05. Regulations................................................. 40
SECTION 8.06. Voting...................................................... 42
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Noteholders.............................. 42
SECTION 9.02. With Consent of Noteholders................................. 43
SECTION 9.03. Compliance with Trust Indenture Act of 1939; Effect of 44
Supplemental Indentures.....................................
SECTION 9.04. Notation on Notes........................................... 45
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be 45
Furnished to Trustee........................................
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ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms............. 45
SECTION 10.02. Successor Corporation to be Substituted for Company......... 46
SECTION 10.03. Opinion of Counsel to be Given Trustee...................... 46
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture...................................... 47
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held 47
in Trust by Trustee.........................................
SECTION 11.03. Paying Agent to Repay Moneys Held........................... 48
SECTION 11.04. Return of Unclaimed Moneys.................................. 48
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government 48
Obligations.................................................
SECTION 11.06. Reinstatement............................................... 49
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. Indenture and Notes Solely Corporate Obligations............ 50
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.................................................. 50
SECTION 13.02. Official Acts by Successor Corporation...................... 50
SECTION 13.03. Surrender of Company Powers................................. 50
SECTION 13.04. Address for Notices, etc. .................................. 51
SECTION 13.05. Governing Law............................................... 51
SECTION 13.06. Evidence of Compliance with Conditions Precedent............ 51
SECTION 13.07. Business Days............................................... 51
SECTION 13.08. Trust Indenture Act of 1939 to Control...................... 52
SECTION 13.09. Table of Contents, Headings, etc. .......................... 52
SECTION 13.10. Execution in Counterparts................................... 52
SECTION 13.11. Separability................................................ 52
SECTION 13.12. Assignment.................................................. 52
SECTION 13.13. No Sinking Fund............................................. 52
EXHIBIT A.................................................................... A-1
EXHIBIT B.................................................................... B-1
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THIS INDENTURE, dated as of March 27, 1998, between Trenwick Group Inc., a
corporation existing under the laws of the State of Delaware (hereinafter
sometimes called the "Company"), and The First National Bank of Chicago, a
national banking association, as trustee (hereinafter sometimes called the
"Trustee").
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Notes (as defined
herein) by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Notes, as follows:
ARTICLE I
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 defined below) or which are by reference therein
defined in the Securities Act (as defined below), shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in the Trust Indenture Act of 1939 and in the
Securities Act as in force at the date of this Indenture as originally executed.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. Headings are used for convenience of reference only and do
not affect interpretation. The singular includes the plural and vice versa.
"Additional Interest" shall have the meaning set forth in the Registration
Rights Agreement. Any reference herein or in the Notes to "interest" shall also
refer to Additional Interest, to the extent such Additional Interest is payable
pursuant to the Registration Rights Agreement.
"Affiliate" shall have the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Authenticating Agent" shall mean any agent or agents of the Trustee which
at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Company or any duly authorized committee of the Board of Directors.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean, with respect to any series of Notes, any day
other than a Saturday or a Sunday or a day on which banking institutions in The
City of New York, New York are authorized or required by law or executive order
to close.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is
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not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Capital Stock" shall mean any and all shares, interests, participations or
equivalents (however designated) of corporate stock or any and all equivalent
ownership interests in a Person other than a corporation).
"Company" shall mean Trenwick Group Inc., a Delaware corporation, and,
subject to the provisions of Article X, shall include its successors and
assigns.
"Company Request" or "Company Order" shall mean a written request or order
signed in the name of the Company by the Chairman, a Vice Chairman, the Chief
Executive Officer, the President, a Vice President (however designated), the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Consolidated Tangible Net Worth" means, at any date, the total assets
appearing on the most recently prepared consolidated balance sheet of the
Company and its Subsidiaries as at the end of a fiscal quarter of the Company,
prepared in accordance with generally accepted accounting principles
consistently applied, less (a) the total liabilities appearing on such balance
sheet and (b) intangible assets. "Intangible assets" means the value (net of any
applicable reserves), as shown on or reflected in such balance sheet, of: (i)
all trade names, trademarks, licenses, patents, copyrights and goodwill; (ii)
organizational and development costs; and (iii) unamortized debt discount and
expense. "Intangible assets" excludes deferred policy acquisition costs and
deferred income tax assets.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Default" shall mean any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Definitive Notes" shall mean those Notes issued in fully registered
certificated form but not Notes issued in global form.
"Depositary" shall mean, with respect to Notes of any series, for which the
Company shall determine that such Notes will be issued as a Global Note, The
Depository Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to Section 2.05(d).
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Notes" shall mean the Company's 6.70% Senior Notes due April 1,
2003, issued pursuant to an Exchange Offer (including any Private Exchange (as
defined in the Registration Rights Agreement)), as authenticated and issued
under this Indenture.
"Exchange Offer" shall mean the offer that may be made pursuant to the
Registration Rights Agreement by the Company to exchange Exchange Notes for
Initial Notes.
"Global Notes" shall mean those Notes issued in global form, and "Global
Note" shall mean the Note executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Indebtedness for Money Borrowed" shall mean any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments.
"Indenture" shall mean this instrument as originally executed or as it may
from time to time be modified, amended or supplemented by one or more indentures
supplemental hereto entered into pursuant to the
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applicable provision hereof including, for all purposes of this instrument and
any supplemental indenture, the provisions of the Trust Indenture Act of 1939
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Initial Notes" shall mean the Company's 6.70% Senior Notes due April 1,
2003, as initially authenticated and issued under this Indenture.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended.
"Interest Payment Date" shall have the meaning set forth in Section 2.06.
"Non Book-Entry Notes" shall have the meaning set forth in Section 2.05.
"Notes" shall mean, collectively, the Initial Notes and the Exchange Notes.
"Noteholder", "holder of Notes", or other similar terms, shall mean any
Person in whose name at the time a particular Note is registered on the register
kept by the Company or the Trustee for that purpose in accordance with the terms
hereof.
"Officers" shall mean any of the Chairman, a Vice Chairman, the Chief
Executive Officer, the President, a Vice President (however designated), the
Secretary or an Assistant Secretary of the Company.
"Officers' Certificate" shall mean a certificate signed by (i) the Chairman
of the Board of Directors, a Vice Chairman of the Board of Directors, the
President, the Chief Executive Officer or a Vice President, and (ii) the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, and delivered to the
Trustee, which certificate shall comply with the provisions of Section 13.06.
"Opinion of Counsel" shall mean a written opinion of legal counsel who is
reasonably acceptable to the Trustee, which opinion shall comply with the
provisions of Section 13.06.
The term "outstanding" when used with reference to Notes, shall, subject to
the provisions of Section 7.04, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee or the Authenticating Agent under
this Indenture, except
(a) Notes theretofore cancelled by the Trustee or the Authenticating
Agent or delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or prepayment 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); and
(c) Notes in lieu of or in substitution for which other Notes shall
have been authenticated and delivered pursuant to the terms of Section 2.08
unless proof satisfactory to the Company and the Trustee is presented that
any such Notes are held by bona fide holders in due course.
"Person" shall mean any individual, corporation, estate, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Note" of any particular Note shall mean every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
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 and which office is, at the time
of execution of this Indenture, located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services Division,
except for purposes of Sections 3.02 and 13.04 such term shall mean the office
or agency of the Trustee in the Borough of Manhattan, the City of New York,
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which office at the date hereof is located at First Chicago Trust Company of New
York, 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Purchase Agreement" shall mean the Purchase Agreement dated March 24, 1998
among the Company and the Initial Purchaser as defined therein.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of March 27, 1998, by and among the Company and the Initial
Purchaser, as such agreement may be amended, modified or supplemented from time
to time.
"Regular Record Date" with respect to the payment of interest installments
on the Notes, shall mean the fifteenth day preceding the relevant Interest
Payment Date. If a Regular Record Date is not a Business Day, such Regular
Record Date shall be deemed to be the next preceding Business Day.
"Responsible Officer," when used with respect to the Trustee, shall mean
any officer or assistant officer of the Trustee assigned by the Trustee to
administer this Indenture.
"Restricted Note" shall mean Notes that bear or are required to bear the
legends set forth in Exhibit A hereto.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or under any similar rule or regulation hereafter
adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Register" shall mean the list of holders kept by a Notes
registrar or provided to the Trustee pursuant to Section 4.01.
"Stated Maturity" shall mean April 1, 2003.
"Significant Subsidiary" means any Subsidiary of the Company which at the
time of determination has, (A) assets which constituted at least 10% of the
Company's total assets on a consolidated basis as of such date, or (B) revenue
which constituted at least 10% of the Company's total revenues on a consolidated
basis for such period or (C) net earnings which constituted at least 10% of the
Company's total net earnings on a consolidated basis for such period, all as
determined as of the date of the Company's most recently prepared quarterly
financial statements or the 12-month period then ended.
"Subsidiary" shall mean with respect to any Person, (i) any corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition, "voting
stock" means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder. The term "Trustee"
as used with respect to a particular series of the Notes shall mean the trustee
with respect to that series.
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act of 1939 as
in force at the date of execution of this Indenture, except as provided in
Section 9.03; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act of 1939" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person
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controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case under clauses (i) or (ii) are not callable or
prepayable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided, that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
ARTICLE II
NOTES
SECTION 2.01. FORMS GENERALLY.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issued in denominations of $1,000 and
integral multiples thereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
At least one Officer shall sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A hereto.
The Trustee shall, upon receipt of a Company Order and such other documents
as may be required by Section 13.06, authenticate for original issue up to, and
the aggregate principal amount of Notes outstanding at any time may not exceed,
seventy-five million U.S. dollars ($75,000,000) aggregate principal amount of
the Notes; except as provided in Sections 2.07, 2.08 and 2.10 hereof. The
Company Order shall specify the amount of Notes to be authenticated and the date
on which such Notes are to be authenticated. The series of Notes to be initially
issued hereunder shall be the Initial Notes.
SECTION 2.03. FORM AND PAYMENT.
Except as provided in Section 2.05, the Notes shall be issued in fully
registered certificated form without interest coupons. Principal of, and
interest on the Notes issued in certificated form will be payable, the transfer
of such Notes will be registrable and such Notes will be exchangeable for Notes
bearing identical terms and provisions at the office or agency of the Company
maintained for such purpose under Section 3.02; provided, however, that payment
of interest with respect to Notes represented by the Global Note (including
principal, interest and Additional Interest, if any) be made by wire transfer of
immediately available funds to the Depositary, which shall credit the relevant
accounts at the Depositary. With respect to Definitive Notes, the Company will
make all payments of principal, interest and Additional Interest, if any, by
wire transfer of immediately available funds to the accounts specified by the
Noteholders thereof, or, if no such account is specified, by mailing a check to
each such Noteholder's registered address.
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SECTION 2.04. LEGENDS.
(a) Except as permitted by subsection (b) of this Section 2.04 or as
otherwise determined by the Company in accordance with applicable law, each Note
shall bear the applicable legends relating to restrictions on transfer pursuant
to the securities laws in substantially the form set forth on Exhibit A hereto.
(b) The Company shall issue and, upon receipt of a Company Order, the
Trustee shall authenticate Exchange Notes in exchange for Initial Notes accepted
for exchange in the Exchange Offer, which Exchange Notes shall not bear the
legends required by subsection (a) above, in each case unless the Trustee is
notified in writing that the holder of such Initial Notes is either (A) a
broker-dealer who purchased such Initial Notes directly from the Company for
resale pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of the Initial
Notes or (C) a Person who is an affiliate (as defined in Rule 144 under the
Securities Act) of the Company or unless the Registration Rights Agreement shall
require otherwise.
SECTION 2.05. GLOBAL NOTE.
(a) The Global Notes shall represent the aggregate amount of outstanding
Notes from time to time endorsed thereon; provided, that the aggregate amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and prepayments. Any endorsement
of a Global Note to reflect the amount of any increase or decrease in the amount
of outstanding Notes represented thereby shall be made by the Trustee, in
accordance with applicable procedures established by the Depositary.
(b) The Global Notes may be transferred, in whole but not in part, only to
another nominee of the Depositary, or to a successor Depositary selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary or the Depositary has ceased to be a
clearing agency registered under the Exchange Act, and a successor Depositary is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon written notice from the Company, will
authenticate and make available for delivery Definitive Notes, in authorized
denominations and in an aggregate principal amount equal to the principal amount
of the Global Note in exchange for such Global Note. If there is an Event of
Default, the Depositary shall have the right to exchange the Global Notes for
Definitive Notes. In addition, the Company may at any time determine that the
Notes shall no longer be represented by a Global Note. In the event of such an
Event of Default or such a determination, the Company shall execute, and subject
to Section 2.07, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and make
available for delivery Definitive Notes, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Global Note in
exchange for such Global Note. Upon the exchange of the Global Note for such
Definitive Notes, in authorized denominations, the Global Note shall be
cancelled by the Trustee. Such Definitive Notes issued in exchange for the
Global Note shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Depositary for delivery to the
Persons in whose names such Definitive Notes are so registered.
SECTION 2.06. INTEREST.
(a) Each Note will bear interest at the rate of 6.70% per annum (the
"Coupon Rate") from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of issuance, until the principal
thereof becomes due and payable, and on any overdue principal and, and (to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded semi-annually,
payable semi-annually in arrears on April 1 and October 1 of each year (each, an
"Interest Payment Date") commencing on October 1, 1998, to the Person in whose
name such
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Note or any predecessor Note is registered on the books of the Company, at the
close of business on the Regular Record Date for such interest installment.
(b) Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months and, for any period less than six months, the actual months
elapsed and the actual days elapsed in a partial month in such period. In the
event that any Interest Payment Date falls on a day that is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if made
on such date.
SECTION 2.07. TRANSFER AND EXCHANGE.
(a) Transfer Restrictions. The Initial Notes, and those Exchange Notes
with respect to which any Person described in Section 2.04(b)(A), (B) or (C) is
the beneficial owner, may not be transferred except in compliance with any
legend contained in Exhibit A unless otherwise determined by the Company in
accordance with applicable law. Attached as Exhibit B is the form of the
transferee letter to be provided to the Trustee prior to a transfer by a Holder
of such Notes who offers, sells or otherwise transfers the Notes within two
years after the original issuance of the Notes inside the United States to an
institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act), which letter contains certain
representations and agreements relating to restrictions in transfer of the Notes
and that such transferee will purchase not less than $100,000 total principal
amount of Notes. Such form of transferee letter will not be required to be
provided following registration of the Notes under the Securities Act pursuant
to the Registration Rights Agreement.
(b) General Provisions Relating to Transfers and Exchanges. To permit
registrations of transfers and exchanges, the Company shall execute Definitive
Notes and Global Notes at the Trustee's request. All Definitive Notes and Global
Notes issued upon any registration of transfer or exchange of Definitive Notes
or Global Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Definitive Notes or Global Notes surrendered upon such registration of transfer
or exchange.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
Prior to due presentment for the registration of a transfer of any Note,
the Trustee, any agent and the Company may deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note for the purpose
of receiving payment of principal of and, and interest on such Notes, and
neither the Trustee, any agent nor the Company shall be affected by notice to
the contrary.
(c) Exchange of Initial Notes for Exchange Notes. The Initial Notes may be
exchanged for Exchange Notes pursuant to the terms of the Exchange Offer. The
Trustee shall make the exchange as follows:
The Company shall present the Trustee with an Officers' Certificate
certifying the following:
(i) upon issuance of the Exchange Notes, the transactions contemplated
by the Exchange Offer have been consummated; and
(ii) the principal amount of Initial Notes properly tendered in the
Exchange Offer that are represented by a Global Note and the principal
amount of Initial Notes properly tendered in the Exchange Offer that are
represented by Definitive Notes, the name of each holder of such Definitive
Notes, the principal amount at maturity properly tendered in the Exchange
Offer by each such holder and the name and address to which Definitive
Notes for Exchange Notes shall be registered and sent for each such holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Exchange Notes have been
registered under Section 5 of the Securities Act and the Indenture, and (y) with
respect to the matters set forth in Section 3(p) of the Registration Rights
Agreement and (iii) a
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Company Order, shall authenticate (A) a Global Note for Exchange Notes in
aggregate principal amount equal to the aggregate principal amount of Initial
Notes represented by a Global Note indicated in such Officers' Certificate as
having been properly tendered and (B) Definitive Notes representing Exchange
Notes registered in the names of, and in the principal amounts indicated in,
such Officers' Certificate.
If the principal amount at Stated Maturity of the Global Note for the
Exchange Notes is less than the principal amount at Stated Maturity of the
Global Note for the Initial Notes, the Trustee shall make an endorsement on such
Global Note for the Initial Notes indicating a reduction in the principal amount
at maturity represented thereby.
The Trustee shall deliver such Definitive Notes for Exchange Notes to the
holders thereof as indicated in such Officers' Certificate.
SECTION 2.08. REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Trustee or the Company, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee shall authenticate a
replacement Note if the Trustee's requirements for replacements of Notes are
met. An indemnity bond must be supplied by the Noteholder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee
or any authenticating agent from any loss that any of them may suffer if a Note
is replaced. The Company or the Trustee may charge for its expenses in replacing
a Note.
(b) Every replacement Note is an obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
(c) The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Notes.
SECTION 2.09. TREASURY NOTES.
In determining whether the holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Affiliate of the Company shall be considered as though not
outstanding, except that for purposes of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent, only Notes
that the Trustee actually knows to be so owned shall be so considered.
SECTION 2.10. TEMPORARY NOTES.
Pending the preparation of Definitive Notes, the Company may execute, and
upon Company Order the Trustee shall authenticate and make available for
delivery, temporary Notes that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company shall cause Definitive Notes to
be prepared without unreasonable delay. The Definitive Notes shall be printed,
typewritten, lithographed or engraved, or provided by any combination thereof,
or in any other manner permitted by the rules and regulations of any applicable
securities exchange, all as determined by the Officers executing such Definitive
Notes. After the preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes at the
office or agency maintained by the Company for such purpose pursuant to Section
3.02, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Notes, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, in exchange therefor the same
aggregate principal amount of Definitive Notes of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Definitive Notes.
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SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall destroy
the cancelled Notes in accordance with its normal practices (subject to the
record retention requirement of the Exchange Act) unless the Company directs
that such cancelled Notes be returned to it. The Company may not issue new Notes
to replace Notes that have been prepaid or paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
Any interest on any Note that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the holder on the relevant
Regular Record Date by virtue of having been such holder; and such Defaulted
Interest shall be paid by the Company, at its election, as provided in clause
(a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on Notes to
the Persons in whose names such Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Note and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for
the payment of such Defaulted Interest which shall not be more than 30 nor
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage prepaid, to each
Noteholder at his or her address as it appears in the Security Register,
not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Notes (or their respective
Predecessor Notes) are registered on such special record date and shall be
no longer payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Notes in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee shall use "CUSIP" numbers in notices as a
convenience to Noteholders; provided, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice and that reliance may be placed only
on the other identification numbers printed on the Notes, and any such
prepayment shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the CUSIP numbers.
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ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. PAYMENT OF PRINCIPAL, AND INTEREST AND ADDITIONAL INTEREST.
The Company covenants and agrees for the benefit of the Noteholders that it
will duly and punctually pay or cause to be paid the principal of, and interest
and Additional Interest, if any, on the Notes at the place, at the respective
times and in the manner provided herein. Except as provided in Section 2.03,
each installment of interest on the Notes may be paid by mailing checks for such
interest payable to the order of the Noteholder entitled thereto, as it may
appear in the Notes register. The Company further covenants to pay any and all
amounts including, without limitation, Additional Interest, if any, on the dates
and in the manner required under the Registration Rights Agreement.
SECTION 3.02. OFFICES FOR NOTICES AND PAYMENTS, ETC.
So long as any of the Notes remains outstanding, the Company will maintain
in The City of New York, New York, an office or agency where the Notes may be
presented for payment, an office or agency where the Notes 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 Notes or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Until otherwise designated from time to time by the
Company in a notice to the Trustee, any such office or agency for all of the
above purposes shall be the office or agency of The First National Bank of
Chicago in the Borough of Manhattan, the City of New York, which office at the
date hereof is located at First Chicago Trust Company of New York, 00 Xxxx
Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. In case the Company shall fail
to maintain any such office or agency in The City of New York, 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 corporate trust office of the Trustee.
In addition to any such office or agency, the Company may from time to time
designate one or more offices or agencies outside The City of New York, New York
where the Notes may be presented for registration of transfer and for exchange
in the manner provided in this Indenture, and the Company may from time to time
rescind such designation, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office or agency in
the City of New York, New York, for the purposes above mentioned. The Company
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.03. 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 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.04. PROVISION AS TO PAYING AGENT.
(a) If the Company shall appoint a paying agent other than the Trustee with
respect to the Notes, 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 provision of this Section 3.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, or interest on the Notes (whether such sums
have been paid to it by the Company or by any other obligor on the Notes)
in trust for the benefit of the holders of the Notes;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment of the
principal of or interest on the Notes when the same shall be due and
payable; and
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(iii) that it will at any time during the continuance of any Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by it as such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of, or interest on the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such principal, or interest so becoming due and will notify
the Trustee of any failure to take such action and of any failure by the Company
(or by any other obligor under the Notes) to make any payment of the principal
of, or interest on the Notes when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Notes hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for any such Notes by the
Trustee or any paying agent hereunder, as required by this Section 3.04, such
sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05. CERTIFICATE TO TRUSTEE.
The Company will deliver to the Trustee on or before 120 days after the end
of each fiscal year in each year, commencing with the first fiscal year ending
after the date hereof, so long as Notes are outstanding hereunder, an Officers'
Certificate, one of the signers of which shall be the principal executive,
principal financial or principal accounting officer of the Company, stating that
in the course of the performance by the signers of their duties as officers of
the Company they would normally have knowledge of any Default by the Company in
the performance of any covenants contained herein, stating whether or not they
have knowledge of any such Default and, if so, specifying each such Default of
which the signers have knowledge and the nature thereof.
SECTION 3.06. COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company will not, while any of the Notes remains outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions of
Article X hereof are complied with.
SECTION 3.07. CORPORATE EXISTENCE.
Subject to Article X, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate or other existence of its Significant Subsidiaries in
accordance with the respective organizational documents of each such Subsidiary
and the rights (charter and statutory) and corporate franchises of the Company
and each such Subsidiary; provided, however, that the Company shall not be
required to preserve, with respect to itself, any right or corporate franchise,
and with respect to such Significant Subsidiaries any such existence, right or
corporate franchise, if the Board of Directors, or the board of directors of the
Significant Subsidiary concerned, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company or any such
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 3.08. LIMITATION ON LIENS.
Except as set forth below, neither the Company nor any Significant
Subsidiary will incur, issue, assume or guarantee any indebtedness for borrowed
money (all such indebtedness for borrowed money incurred, issued, permitted to
exist, assumed or guaranteed being hereinafter in this Section called
"Indebtedness") secured by a lien, mortgage, pledge, security interest, charge
or encumbrance of any kind ("Lien") on any property or assets of the Company or
any Significant Subsidiary, or any shares of Capital Stock of any Significant
Subsidiary, without effectively providing that the Notes (together with, if the
Company shall so determine, any other Indebtedness which is not subordinated to
the Notes) shall be secured equally and ratably with (or
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prior to) such Indebtedness, so long as such Indebtedness shall be so secured,
unless after giving effect thereto, the aggregate amount of all such secured
Indebtedness of the Company and its Subsidiaries would not exceed 10% of
Consolidated Tangible Net Worth of the Company and its Subsidiaries as reflected
on the Company's most recently prepared quarterly balance sheet; provided,
however, that this covenant shall not apply to, and there shall be excluded from
secured Indebtedness in any computation under this covenant, Indebtedness
secured by:
(a) Liens existing on the date hereof;
(b) Liens on property of, or on any shares of Capital Stock of, any
Person existing at the time such Person becomes a Significant Subsidiary or
merges into or consolidates with the Company or a Significant Subsidiary;
(c) Liens on property of, or on any shares of Capital Stock of, any
Person existing at the time of acquisition thereof by the Company or any
Significant Subsidiary;
(d) Liens to secure the financing of the acquisition, construction or
improvement of property, or the acquisition of shares of stock, hereafter
acquired, constructed or improved by the Company or any Subsidiary,
provided that such Liens are created prior to, at the time of or within one
year after such acquisition or, in the case of property, completion of
construction or commencement of commercial operation, whichever is later;
(e) Liens in favor of the Company or any Subsidiary;
(f) Liens required by or in favor of domestic governments or agencies
thereof including those to secure progress, advance or other payments
pursuant to any contract or provisions of any statute; and
(g) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the foregoing clauses (a) to (f), inclusive, provided, however, that (i)
such extension, renewal or replacement Lien shall be limited to all or a
part of the same property or shares of stock that secured the Lien
extended, renewed or replaced (plus improvements, including additions to
improvements, on such property) and (ii) the Indebtedness secured by such
Lien at such time is not increased (except, with respect to a Lien on
property, to the extent that additional Indebtedness was incurred to
provide for the payment of all or any part of the construction price of
improvements or additions to improvements on such property).
SECTION 3.09. LIMITATION ON DISPOSITION OF CAPITAL STOCK OF SIGNIFICANT
SUBSIDIARIES.
Except as provided in Section 3.08, the Company will not, and will not
permit any Subsidiary to, sell, transfer or otherwise dispose of any shares of
Capital Stock of any Significant Subsidiary (or of any Subsidiary having direct
or indirect control of any Significant Subsidiary) except for, subject to
Article X, (i) a sale, transfer or other disposition of any Capital Stock of any
Significant Subsidiary (or of any Subsidiary having direct or indirect control
of any Significant Subsidiary) to the Company or a wholly owned Subsidiary of
the Company or (ii) a sale, transfer or other disposition of all or any part of
the Capital Stock of any Significant Subsidiary (or of any Subsidiary having
direct or indirect control of any Significant Subsidiary) held by the Company
and/or its Subsidiaries for at least fair value (as determined by the Board of
Directors of the Company acting in good faith).
SECTION 3.10. PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this Indenture or the removal or resignation of the
Trustee, unless otherwise stated, the Company shall pay to the Trustee all
amounts accrued and owing to the date of such termination, removal or
resignation.
SECTION 3.11. TAXES AND OTHER CLAIMS.
The Company and each Significant Subsidiary shall file all federal, state
and local tax returns required to be filed by it and shall pay or discharge or
cause to be paid or discharged, before the same shall become
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delinquent, (i) all taxes, assessments and governmental charges which are
material to the Company and its Subsidiaries, on a consolidated basis (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon the Company or its Subsidiaries or upon the income, profits or
property of the Company or any such Significant Subsidiary, and (ii) all lawful
claims of materialmen, mechanics, carriers, warehousemen, landlords and other
like persons which are material to the Company and its Subsidiaries, on a
consolidated basis and, if unpaid, might by law become a lien upon the property
of the Company or any such Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment or governmental change or claim whose amount, applicability or
validity is being contested in good faith and for which disputed amounts
adequate reserves have been made in the opinion of the Company's management or
as required by generally accepted accounting principles.
ARTICLE IV
NOTEHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. NOTEHOLDERS' LISTS.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:
(a) on a semi-annual basis on each Regular Record Date for the Notes,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Noteholders as of such record date;
(b) at such other times as the Trustee may request in writing, within
30 Business Days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 Business
Days prior to the time such list is furnished, except that no such list
need be furnished so long as the Trustee is in possession thereof by reason
of its acting as Note registrar. The Company hereby appoints the Trustee as
Notes registrar.
SECTION 4.02. PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of the
Notes (1) contained in the most recent list furnished to it as provided in
Section 4.01 or (2) received by it in the capacity of Notes registrar (if so
acting) hereunder. The Trustee may destroy any list furnished to it as provided
in Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Notes (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of Notes or
with holders of all Notes with respect to their rights under this Indenture and
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within 5 Business Days
after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.02; or
(ii) inform such applicants as to the approximate number of holders of
all Notes whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.02, and as to the approximate cost of mailing to such
Noteholders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Noteholder whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02 a copy of the form of proxy or other
communication which is specified in such request with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision
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for the payment, of the reasonable expenses of mailing, unless within 5 Business
Days after such tender, the Trustee shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of all Notes or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Noteholders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any paying agent shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the holders of Notes in
accordance with the provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
SECTION 4.03. REPORTS OF THE COMPANY.
(a) The Company covenants and agrees to file with the Trustee, within 15
Business Days after the date on which the Company files the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a Note listed
and registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail to all holders of
Notes, as the names and addresses of such holders appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 4.03 as may be
required by rules and regulations prescribed from time to time by the
Commission.
(d) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the Notes to qualify for
an exemption under Rule 144A under the Securities Act, the Company shall, upon
request, provide the information required by clause (d)(4) thereunder to each
Holder and to each beneficial owner and prospective purchaser of Notes
identified by any holder of Restricted Notes, unless such information is
furnished to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
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SECTION 4.04. REPORTS BY THE TRUSTEE.
Within 60 days after May 15 of each year, commencing May 15, 1999, the
Trustee shall provide to the holders of the Notes such reports as are required
by Section 313 of the Trust Indenture Act of 1939, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act of 1939. The
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act of 1939.
ARTICLE V
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. EVENTS OF DEFAULT.
One or more of the following events of default shall constitute an Event of
Default hereunder (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest or Additional Interest upon
any Note when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
Note as and when the same shall become due and payable either at maturity,
upon prepayment, by declaration of acceleration of maturity or otherwise;
or
(c) the Company fails to comply with any of its other agreements in
the Notes or this Indenture and the default continues for 60 days after
notice to the Company by the Trustee as specified below;
(d) there shall be a default under any evidence or Indebtedness of the
Company or any Subsidiary, whether any such Indebtedness now exists or
shall hereafter be created, if (A) either (i) such default results from the
failure to pay any such Indebtedness at maturity or (ii) as a result of
such default the maturity of such Indebtedness has been accelerated prior
to its expressed maturity and (B) the aggregate principal amount of such
Indebtedness equals $10,000,000 or more or, together with the principal
amount of any other Indebtedness of the Company or any Subsidiary in
default for failure to pay principal at maturity or the maturity of which
has been accelerated aggregates $10,000,000 or more and (C) without such
Indebtedness having been discharged or such acceleration having been
rescinded or annulled within a period of 30 days after notice to the
Company by the Trustee as specified below; provided, however, that if the
Company shall have commenced and shall pursue the contest of the validity
of such acceleration in good faith by appropriate legal proceedings, then,
from the date of such commencement to the conclusion of such proceedings,
the Event of Default hereunder by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further action
upon the part of either the Trustee or any of the Holders of the Notes;
provided, further, however, that if such acceleration shall subsequently be
rescinded or annulled any acceleration of the Notes consequent solely on
such other acceleration shall likewise be deemed rescinded or annulled
without further action on the part of the Trustee or the Holders of the
Notes;
(e) the Company or any Significant Subsidiary, pursuant to or within
the meaning of any Bankruptcy Law (A) becomes insolvent, (B) fails
generally to pay its debts as they become due, (C) admits in writing its
inability to pay its debts generally as they become due, (D) commences a
voluntary case or proceeding, (E) consents to, or acquiesces in, the
institution of a bankruptcy or an insolvency proceeding against it or the
entry of a judgment, decree or order for relief against it in an
involuntary case or proceeding, (F) applies for, consents to or acquiesces
in the appointment of or taking possession by a Custodian of the Company or
any Significant Subsidiary or of all or substantially all of its property
or (G) makes a general assignment for the benefit of its creditors; or
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(f) a court of competent jurisdiction enters a judgment, decree or
order under any Bankruptcy Law which (A) is for relief against the Company
or any Significant Subsidiary in an involuntary case, (B) appoints a
Custodian of the Company or any Significant Subsidiary or a Custodian for
all or substantially all of its property or (C) orders the winding-up or
liquidation of the Company or any Significant Subsidiary; and such
judgment, decree or order shall remain unstayed and in effect for a period
of 60 consecutive days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief, supervision, conservation, reorganization or
liquidation of debtors or for the benefit of creditors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clause (c) or (d) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the Notes notify
the Company of the Default and the Company does not cure the Default within the
period specified in the applicable clause after receipt of the notice. The
notice must specify the Default, demand that it be remedied and state that the
notice is a "Notice of Default." Such notice shall be given by the Trustee if
requested by the Holders of at least 25% in principal amount of the Notes then
outstanding.
SECTION 5.02. PAYMENT OF NOTES ON DEFAULT; SUIT THEREFOR.
If an Event of Default (other than an Event of Default specified in Section
5.01(e) or (f)) occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 25% in principal amount of the Notes by notice to the
Company and the Trustee, may declare the unpaid principal of and accrued
interest on all the Notes to be due and payable. Upon such declaration the
principal and accrued interest of such Notes shall be due and payable
immediately. If an Event of Default specified in Section 5.01(e) or (f) occurs,
all unpaid principal of and accrued interest on the Notes then outstanding shall
automatically become due and payable without any declaration or other act on the
part of the Trustee or any Noteholder. Upon payment of such principal amount and
interest all of the Company's obligations under the Notes and this Indenture,
other than obligations under Section 6.06, shall terminate. The Holders of a
majority in principal amount of the Notes by notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except non-payment of principal or interest that has become due solely
because of the acceleration.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any 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 on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes 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 Notes under Xxxxx 00,
Xxxxxx Xxxxxx Code, or any other applicable law, or in case a receiver or
trustee 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 upon the Notes, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 5.02, 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 and interest owing and
unpaid in respect of the Notes 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 (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in such
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judicial proceedings relative to the Company or any other obligor on the Notes,
or to the creditors or property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on behalf of the holders
of the Notes in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and 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 its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Noteholders 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 Noteholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any holder thereof or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Notes, may be enforced by the Trustee without the possession of any
of the Notes, 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
Notes.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Notes, and it shall not be necessary to make any holders of the Notes
parties to any such proceedings.
SECTION 5.03. LIMITATION ON SUITS.
A Noteholder may pursue a remedy with respect to this Indenture or the
Notes only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Notes make
a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offers to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the Notes do not give the Trustee a direction inconsistent with
the request.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
SECTION 5.04. APPLICATION OF MONEYS COLLECTED BY TRUSTEE.
Any moneys collected by the Trustee 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 Notes in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of all amounts due to the Trustee under Section 6.06,
including the costs and expenses of collection applicable to the Notes and
reasonable compensation to the Trustee, its agents,
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attorneys and counsel, and of all other expenses and liabilities incurred, and
all advances made, by the Trustee except as a result of its negligence or bad
faith;
Second: To Noteholders for amounts due and unpaid on the Notes for
principal and interest, ratably without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, interest
and Additional Interest, if any, respectively; and
Third: To the Company.
SECTION 5.05. PROCEEDINGS BY NOTEHOLDERS.
No holder of any Note 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 for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof with respect to the Notes
specifying such Event of Default, as hereinbefore provided, and unless also the
holders of not less than 25% in principal amount of the Notes at the time
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 failed to institute any such action, suit or proceeding,
and during such 60 days the holders of a majority in principal amount of the
Notes at the time outstanding do not give a direction to the Trustee
inconsistent with the request, it being understood and intended, and being
expressly covenanted by the taker and holder of every Note with every other
taker and holder and the Trustee, that no one or more holders of Notes shall
have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Notes, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Note to receive payment of the principal of interest, and
Additional Interest on such Note, on or after the same shall have become due and
payable, or to institute suit for the enforcement of any such payment, shall not
be impaired or affected without the consent of such holder and by accepting a
Note hereunder it is expressly understood, intended and covenanted by the taker
and holder of every Note with every other such taker and holder and the Trustee,
that no one or more holders of Notes shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other Notes, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of Notes.
For the protection and enforcement of the provisions of this Section, each and
every Noteholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 5.06. PROCEEDINGS BY TRUSTEE.
In case an Event of Default occurs with respect to Notes and is continuing,
the Trustee may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of such rights,
either 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 5.07. REMEDIES CUMULATIVE AND CONTINUING.
Except as provided in the last paragraph of Section 2.08, all powers and
remedies given by this Article V to the Trustee or to the Noteholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Notes, by
judicial
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proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to the Notes, and no delay or omission of the Trustee or of any
holder of any of the Notes to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Noteholders.
SECTION 5.08. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF
NOTEHOLDERS.
The holders of a majority in principal amount of the Notes 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; provided, however, that (subject to
the provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or 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 proceedings so directed would involve the Trustee in personal
liability. Prior to any declaration accelerating the Stated Maturity of the
Notes, the holders of a majority in principal amount of the Notes at the time
outstanding may on behalf of the holders of all of the Notes waive any past
Default or Event of Default and its consequences except a Default (a) in the
payment of principal of or interest on any of the Notes or (b) in respect of
covenants or provisions hereof which cannot be modified or amended without the
consent of the holder of each Note affected. Upon any such waiver, the Default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Notes shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall have been
waived as permitted by this Section 5.07, said Default or Event of Default shall
for all purposes of the Notes and this Indenture be deemed to have been cured
and to be not continuing.
SECTION 5.09. NOTICE OF DEFAULTS.
The Trustee shall, within 60 days after the occurrence of a Default with
respect to the Notes mail to all Noteholders, as the names and addresses of such
holders appear upon the Note register, notice of all Defaults 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 5.08 being hereby
defined to be the events specified in clauses (a), (b), (c), (d), (e) and (f) of
Section 5.01, not including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in Section 5.03); and
provided, that, except in the case of Default in the payment of the principal of
or interest on any of the Notes, the Trustee shall be protected in withholding
such notice if and so long as the board of directors of the Trustee, the
executive committee thereof, 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 interests of the Noteholders.
SECTION 5.10. UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any Note 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 or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.10 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Noteholder or group of Noteholders
holding in the aggregate more than 10% in principal amount of the Notes
outstanding at the time outstanding, or to any suit instituted by any
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Noteholder for the enforcement of the payment of the principal of or interest on
any Note against the Company on or after the same shall have become due and
payable.
SECTION 5.11. WAIVER OF STAY OR EXTENSION LAWS.
The Company (to the extent it may lawfully do so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.12. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or any Noteholder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the Trustee
or to the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Noteholders, as the case may be.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE.
With respect to the holders of the Notes issued hereunder, the Trustee,
prior to the occurrence of an Event of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default 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, 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 willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any 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 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 or
omitted to be taken by it in good faith, in accordance with the direction of the
Noteholders pursuant to Section 5.07, relating to the time,
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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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Every portion of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Article VI and to the provisions of the Trust Indenture Act
of 1939.
SECTION 6.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC.
Except as otherwise provided in Section 6.01:
(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, consent, order, bond, note,
debenture or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties, and the
Trustee need not investigate any fact or matter stated in such document;
(b) any request, direction, order or demand of the Company mentioned
herein may be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed) and
the Trustee shall not be liable for any action taken or suffered or omitted
by it hereunder in good faith in reliance on such Officers' Certificate;
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or 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 Noteholders, pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default (that has not been cured or
waived), to exercise such of the rights and powers vested in it by this
Indenture, and to 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;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, coupon or other paper or document, unless requested in
writing to do so by the holders of a majority in principal amount of the
Notes at the time outstanding; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the Note afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expense or liability as a
condition to so proceeding; 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
(including any Authenticating Agent) or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed by it with due care.
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(h) The Trustee shall not be charged with knowledge of any Default or
Event of Default except (i) a Default under Sections 5.01(a) and 5.01(b) of
this Indenture (other than with respect to the payment of Additional
Interest) or (ii) any Default or Event of Default of which a Responsible
Officer shall have actual knowledge thereof or the Trustee shall have
received notice thereof in accordance with Section 13.03 from the Company
or any Noteholder.
SECTION 6.03. NO RESPONSIBILITY FOR RECITALS, ETC.
The recitals contained herein and in the Notes (except in the certificate
of authentication of the Trustee or the Authenticating Agent) shall be taken as
the statements of the Company, and the Trustee and the Authenticating Agent
assume no responsibility for the correctness of the same. The Trustee and the
Authenticating Agent make no representations as to the validity or sufficiency
of this Indenture or of the Notes. The Trustee and the Authenticating Agent
shall not be accountable for the use or application by the Company of any Notes
or the proceeds of any Notes authenticated and delivered by the Trustee or the
Authenticating Agent in conformity with the provisions of this Indenture.
SECTION 6.04. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENTS, TRANSFER AGENTS OR
REGISTRAR MAY OWN NOTES.
The Trustee or any Authenticating Agent or any paying agent or any transfer
agent or any Note registrar, in its individual or any other capacity, may become
the owner or pledgee of Notes with the same rights it would have if it were not
Trustee, Authenticating Agent, paying agent, transfer agent or Note registrar.
SECTION 6.05. MONEYS TO BE HELD IN TRUST.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
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 the Chairman of the Board of Directors,
the President or a Vice President or the Treasurer or an Assistant Treasurer of
the Company.
SECTION 6.06. 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, such compensation as shall be agreed to in
writing between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and 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,
disbursement or advance as may arise from its negligence or bad faith. The
Trustee's compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust. The Company also covenants to
indemnify each of the Trustee or any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including reasonable attorney's
fees and taxes (other than taxes based on the income of the Trustee) incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 6.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Notes upon all property and funds held or collected by the Trustee in its
capacity as such, except funds held in trust for the benefit of the holders of
particular Notes.
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Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(e) or Section
5.01(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services of the Trustee as provided for
herein are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive resignation or removal of the
Trustee and the termination of this Indenture.
SECTION 6.07. OFFICERS' CERTIFICATE AS EVIDENCE.
Except as otherwise provided in Sections 6.01 and 6.02, 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 or
omitting any action hereunder, such matter (unless other evidence in respect
thereof is 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 or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. CONFLICTING INTEREST OF TRUSTEE.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act of 1939, the Trustee and
the Company shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act of 1939.
SECTION 6.09. ELIGIBILITY OF TRUSTEE.
The Trustee hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
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 6.09 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.09, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.10.
SECTION 6.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign by giving written notice of such resignation to the Company and by
mailing notice thereof to the holders of the Notes at their addresses as they
shall appear on the Note register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee or trustees by written
instrument, in duplicate, 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 and have accepted appointment within 60 days after
the mailing of such notice of resignation to the affected Noteholders, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Noteholder who has been a bona fide
holder of a Note for at least six months may, subject to the provisions of
Section 5.09, 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.
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(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.08 after written request therefor by the Company or by any Noteholder who
has been a bona fide holder of a Note or Notes for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Noteholder, or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, 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 5.09, any Noteholder
who has been a bona fide holder of a Note 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. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in principal amount of the Notes at the time
outstanding may at any time remove the Trustee and nominate a successor trustee,
which shall be deemed appointed as successor trustee unless within 10 days after
such nomination the Company objects thereto or if no successor trustee shall
have been so appointed and shall have accepted appointment within 30 days after
such removal, in which case the Trustee so removed or any Noteholder, upon the
terms and conditions and otherwise as in subsection (a) of this Section 6.10
provided, may petition any court of competent jurisdiction for an appointment of
a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. ACCEPTANCE BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 6.10 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 retiring trustee 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 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 of any amounts then due it pursuant to the
provisions of Section 6.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a 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
6.06.
No successor trustee shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.08 and eligible under the provisions
of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.11, the Company shall mail notice of the succession of such trustee
hereunder to the holders of Notes at their addresses as they shall appear on the
Note register. If the Company fails to mail such notice within 10 Business Days
after the
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acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Company.
SECTION 6.12. 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 all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the full force which
the es or this Indenture elsewhere provides that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. LIMITATION ON RIGHTS OF TRUSTEE AS A CREDITOR.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
included therein.
SECTION 6.14. AUTHENTICATING AGENTS.
There may be one or more Authenticating Agents appointed by the Trustee
upon the request of the Company with power to act on its behalf and subject to
its direction in the authentication and delivery of Notes issued upon exchange
or registration of transfer thereof as fully to all intents and purposes as
though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Notes; provided, that the Trustee shall have no
liability to the Company for any acts or omissions of the Authenticating Agent
with respect to the authentication and delivery of Notes. Any such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and being subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 6.14 the combined capital
and surplus of such corporation 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, it shall resign immediately in the manner and
with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a
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notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Noteholders as the names and addresses of such holders appear
on the Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein.
The Company, as borrower, agrees to pay to any Authenticating Agent from
time to time reasonable compensation for its services. Any Authenticating Agent
shall have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE NOTEHOLDERS
SECTION 7.01. ACTION BY NOTEHOLDERS.
Whenever in this Indenture it is provided that the holders of a specified
percentage in principal amount of the Notes at the time outstanding 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 Noteholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Notes voting in
favor thereof at any meeting of such Noteholders duly called and held in
accordance with the provisions of Article VIII, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Noteholders.
If the Company shall solicit from the Noteholders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers' Certificate, fix in advance a
record date for the determination of Noteholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action, but
the Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Noteholders of
record at the close of business on the record date shall be deemed to be
Noteholders for the purposes of determining whether Noteholders of the requisite
proportion of outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the outstanding Notes shall be computed as of the
record date; provided, however, that no such authorization, agreement or consent
by such Noteholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
SECTION 7.02. PROOF OF EXECUTION BY NOTEHOLDERS.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Noteholder 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 satisfactory to
the Trustee. The ownership of Notes shall be proved by the Security Register or
by a certificate of the Note registrar. The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 8.06.
SECTION 7.03. WHO ARE DEEMED ABSOLUTE OWNERS.
Prior to due presentment for registration of transfer of any Note, the
Company, the Trustee, any Authenticating Agent, any paying agent, any transfer
agent and any Note registrar may deem the Person in whose name such Note shall
be registered upon the Security Register to be, and may treat him as, the
absolute owner of such Note (whether or not such Note shall be overdue) for the
purpose of receiving payment of or on
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account of the principal of, and, subject to Section 2.06, interest on such Note
and for all other purposes; and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any Note
registrar 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 Note.
SECTION 7.04. NOTES OWNED BY COMPANY DEEMED NOT OUTSTANDING.
In determining whether the holders of the requisite principal amount of
Notes at the time outstanding have concurred in any direction, consent or waiver
under this Indenture, Notes which are owned by the Company or any other obligor
on the Notes 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 Notes 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 relying on any such
direction, consent or waiver, only Notes which the Trustee actually knows are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this Section 7.04 if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Notes and that the pledgee is not the Company or any such
other obligor or 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 7.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in principal amount of the Notes at the time outstanding specified in
this Indenture in connection with such action, any holder of a Note (or any Note
issued in whole or in part in exchange or substitution therefor) the serial
number of which is shown by the evidence to be included in the Notes the holders
of which have consented to such action may, by filing written notice with the
Trustee at the principal office of the Trustee and upon proof of holding as
provided in Section 7.02, revoke such action so far as concerns such Note (or so
far as concerns the principal amount represented by any exchanged or substituted
Note). Except as aforesaid any such action taken by the holder of any Note shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Note, and of any Note issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Note or any Note issued in exchange or substitution therefor.
ARTICLE VIII
NOTEHOLDERS' MEETINGS
SECTION 8.01. PURPOSE OF MEETINGS.
A meeting of Noteholders may be called at any time and from time to time
pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) 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 Noteholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
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(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified principal amount of such Notes at the time
outstanding under any other provision of this Indenture or under applicable
law.
SECTION 8.02. CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of Noteholders to take any
action specified in Section 8.01, 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 Noteholders, 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 Notes at their addresses as they shall
appear on the Securities Register. Such notice shall be mailed not less than 20
nor more than 180 days prior to the date fixed for the meeting.
SECTION 8.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS.
In case at any time the Company pursuant to a Board Resolution, or the
holders of at least 10% in principal amount of the Notes at the time
outstanding, shall have requested the Trustee to call a meeting of Noteholders,
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
Noteholders may determine the time and the place in the Borough of Manhattan,
The City of New York for such meeting and may call such meeting to take any
action authorized in Section 8.01, by mailing notice thereof as provided in
Section 8.02.
SECTION 8.04. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Noteholders a Person shall (a) be
a holder of one or more Notes or (b) a Person appointed by an instrument in
writing as proxy by a holder of one or more Notes. The only Persons who shall be
entitled to be present or to speak at any meeting of Noteholders 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 8.05. REGULATIONS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Noteholders, in regard to proof of the holding of Notes 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.
(b) 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 Noteholders as provided in Section 8.03, in which case the Company
or the Noteholders 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.
(c) Subject to the provisions of Section 8.04, at any meeting each holder
of Notes or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Note 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 Notes held by him or instruments in writing as aforesaid duly
designating him as the Person to vote on behalf of other Noteholders. Any
meeting of Noteholders duly called pursuant to the provisions of Section 8.02 or
8.03 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.
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(d) The Persons entitled to vote a majority in principal amount of the
outstanding Notes shall constitute a quorum for a meeting of holders of Notes;
provided, however, that if any action is to be taken at such meeting with
respect to a consent, waiver, request, demand, notice, authorization, direction
or other action which may be given by the holders of not less than a specified
percentage in principal amount of the outstanding Notes, the Persons holding or
representing such specified percentage in principal amount of the outstanding
Notes will constitute a quorum. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at the
request of holders of Notes, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 8.02,
except that such notice need be given only once not less than five days prior
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the outstanding Notes which shall
constitute a quorum.
(e) Any resolution passed or decision taken at any meeting of holders of
Notes duly held in accordance with this Section shall be binding on all the
holders of Notes whether or not present or represented at the meeting.
SECTION 8.06. VOTING.
The vote upon any resolution submitted to any meeting of holders of Notes
shall be by written ballots on which shall be subscribed the signatures of such
holders or of their representatives by proxy and the serial number or numbers of
the Notes 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 triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Noteholders 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 8.02. The record
shall show the serial numbers of the Notes 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.
The holders of the Initial Notes and the Exchange Notes shall vote for all
purposes as a single class.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF NOTEHOLDERS.
The Company and the Trustee may from time to time and at any time amend
this Indenture, without the consent of the Noteholders, 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 X hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Noteholders as the
Board of Directors and the Trustee shall consider to be for the protection
of the Noteholders, 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
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permitting the enforcement of all or any of the remedies provided in this
Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction or condition, such amendment 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 Notes in
coupon form if allowed by law (including Notes registrable as to principal
only) and to provide for exchangeability of such Notes with the Notes
issued hereunder in fully registered form and to make all appropriate
changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture; provided, that any such
action shall not materially adversely affect the interests of the holders
of the Notes;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Notes;
(f) to qualify or maintain qualification of this Indenture under the
Trust Indenture Act of 1939; or
(g) to make any change that does not adversely affect the rights of
any Noteholder in any material respect.
The Trustee is hereby authorized to join with the Company in the execution
of any supplemental indenture to effect such amendment, 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 amendment to this Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Notes at the time outstanding, notwithstanding any
of the provisions of Section 9.02.
SECTION 9.02. WITH CONSENT OF NOTEHOLDERS.
(a) With the consent (evidenced as provided in Section 7.01) of the holders
of a majority in principal amount of the Notes at the time outstanding, the
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time amend this Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of the
Notes; provided, however, that no such amendment shall without the consent of
the holders of each Note then outstanding and affected hereby (i) extend the
Stated Maturity of any Note, or reduce the rate, or reduce the principal amount
thereof, or make the principal thereof or any interest or Additional Interest
thereon payable in any coin or currency other than that provided in the Notes,
or impair or affect the right of any Noteholder to institute suit for payment
thereof, or (ii) reduce the aforesaid percentage of Notes the holders of which
are required to consent to any such amendment to this Indenture or (iii) reduce
the percentage of aggregate principal amount of outstanding notes necessary for
waiver of compliance with certain provisions of this indenture or for waiver of
certain defaults.
(b) Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any supplemental indenture affecting such
amendment, and upon the filing with the Trustee of evidence of the consent of
Noteholders 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.
(c) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a
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notice, prepared by the Company, setting forth in general terms the substance of
such supplemental indenture, to the Noteholders as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
(d) It shall not be necessary for the consent of the Noteholders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT OF 1939; EFFECT OF
SUPPLEMENTAL INDENTURES.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act of 1939. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Notes 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 9.04. NOTATION ON NOTES.
Notes authenticated and delivered after the execution of any supplemental
indenture affecting such series pursuant to the provisions of this Article IX
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 Notes 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 or the Authenticating Agent and delivered in
exchange for the Notes then outstanding.
SECTION 9.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED
TO TRUSTEE.
(a) The Trustee, subject to the provisions of Sections 6.01 and 6.02, 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 IX.
(b) The Trustee may receive an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article is authorized
or permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Notes shall prevent
any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer or
lease of the property of the Company or its successor or successors as an
entirety, or substantially as an entirety, to any other Person (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, that (a) the Company is the surviving
Person or the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, conveyance, transfer
or lease of property is made is a Person organized and existing under the laws
of the United States or any State thereof or the District of Columbia, and (b)
upon any such consolidation, merger, sale, conveyance, transfer or lease, the
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due and punctual payment of the principal of and interest on the Notes according
to their tenor and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act of 1939, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
Person formed by such consolidation, or into which the Company shall have been
merged, or by the Person which shall have acquired such property, and (c)
immediately after giving effect to such consolidation, merger, sale, conveyance,
transfer or lease, no Default or Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default shall have
occurred and be continuing.
SECTION 10.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED FOR COMPANY.
In case of any such consolidation, merger, conveyance or transfer and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and interest on all of the Notes and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, such
successor Person shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and
the Company thereupon shall be relieved of any further liability or obligation
hereunder or upon the Notes. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of Trenwick Group
Inc., any or all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee or the Authenticating Agent shall authenticate
and deliver any Notes which previously shall have been signed and delivered by
the officers of the Company to the Trustee or the Authenticating Agent for
authentication, and any Notes which such successor Person thereafter shall cause
to be signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Notes had
been issued at the date of the execution hereof.
SECTION 10.03. OPINION OF COUNSEL TO BE GIVEN TRUSTEE.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X, complies with the provisions of this
Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. DISCHARGE OF INDENTURE.
When (a) the Company shall deliver to the Trustee for cancellation all
Notes theretofore authenticated (other than any Notes which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.08) and not theretofore cancelled, or (b) all the Notes 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, and the Company shall deposit or cause to be deposited with the
Trustee, in trust, funds sufficient to pay on the Stated Maturity all of the
Notes (other than any Notes which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.08) not
theretofore cancelled or delivered to the Trustee for cancellation, including
principal and interest and any Additional Interest due or to become due to the
Stated Maturity or prepayment date, as the case may be, but excluding, however,
the amount of any moneys for the payment of principal or interest and any
Additional Interest on the Notes (1) theretofore repaid to the Company in
accordance with the provisions
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of Section 11.04, or (2) paid to any State or to the District of Columbia
pursuant to its unclaimed property or similar laws, 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 for
the provisions of Sections 2.02, 2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and
11.04, which shall survive until such Notes shall mature and be paid.
Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and the Trustee, on
demand of the Company accompanied by any Officers' Certificate and an Opinion of
Counsel, to the effect that all conditions to the satisfaction and discharge of
this Indenture have been satisfied, 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 Notes.
SECTION 11.02. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST BY TRUSTEE.
Subject to the provisions of Section 11.04, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.05 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 Notes for the payment of which such moneys or U.S.
Government Obligations have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.05 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of outstanding Notes.
SECTION 11.03. PAYING AGENT TO REPAY MONEYS HELD.
Upon the satisfaction and discharge of this Indenture all moneys then held
by any paying agent of the Notes (other than the Trustee) shall, upon written
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 11.04. RETURN OF UNCLAIMED MONEYS.
Any moneys deposited with or paid to the Trustee or any paying agent for
payment of the principal of or interest on Notes and not applied but remaining
unclaimed by the holders of Notes for two years after the date upon which the
principal of or interest on such Notes, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee or such paying
agent on written demand; and the holder of any of the Notes shall thereafter
look only to the Company for any payment which such holder may be entitled to
collect and all liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
SECTION 11.05. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT
OBLIGATIONS.
The Company shall be deemed to have been Discharged (as defined below) from
its obligations with respect to the Notes on the 91st day after the applicable
conditions set forth below have been satisfied with respect to the Notes:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as defined below) as
trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Notes (i) money in an amount,
or (ii) U.S. Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms will
provide, not later than one Business Day before the due date of any
payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee and the Defeasance Agent, if
any, to pay and discharge each installment of principal of and interest on
the outstanding Notes on the dates such installments of principal or
interest are due;
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(b) if the Notes are then listed on any national securities exchange,
the Company shall have delivered to the Trustee and the Defeasance Agent,
if any, an Opinion of Counsel to the effect that the exercise of the option
under this Section 11.05 would not cause such Notes to be delisted from
such exchange;
(c) no Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit; and
(d) the Company shall have delivered to the Trustee and the Defeasance
Agent, if any, an Opinion of Counsel to the effect that holders of the
Notes will not recognize income, gain or loss for United States federal
income tax purposes as a result of the exercise of the option under this
Section 11.05 and will be subject to United States federal income tax in
the same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised, and such opinion shall
be accompanied by a private letter ruling to that effect received from the
United States Internal Revenue Service or a revenue ruling pertaining to a
comparable form of transaction to that effect published by the United
States Internal Revenue Service.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Notes and to have
satisfied all the obligations under this Indenture relating to the Notes (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except (A) the rights of holders of Notes to receive,
from the trust fund described in clause (1) above, payment of the principal of
and the interest on the Notes when such payments are due; (B) the Company's
obligations with respect to the Notes under Sections 2.07, 2.08, 5.02 and 11.04;
and (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
"Defeasance Agent" means another financial institution which is eligible to
act as Trustee hereunder and which assumes all of the obligations of the Trustee
necessary to enable the Trustee to act hereunder. In the event such a Defeasance
Agent is appointed pursuant to this Section, the following conditions shall
apply:
(a) The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth such
Defeasance Agent's rights and responsibilities; and
(b) The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U.S. Government
Obligations to meet the applicable conditions set forth in this Section
11.05.
SECTION 11.06. REINSTATEMENT.
If the Trustee or any Defeasance Agent is unable to apply any money in
accordance with Section 11.05 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.05 until such time as the Trustee or
any Defeasance Agent is permitted to apply all such money in accordance with
Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or interest or Additional
Interest on any Note, 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 Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer, employee or director, as such, past, present or future, of
the Company or of any successor Person to the Company, either directly or
through the Company, any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or
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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 Notes.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. 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 13.02. 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 13.03. SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by authority of two-thirds
( 2/3) of its Board of Directors and delivered to the Trustee may surrender any
of the powers reserved to the Company, and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor Person.
SECTION 13.04. ADDRESS 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 Notes on
the Company may be given or served by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee for the purpose) to the
Company, Metro Center, Xxx Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000, Attention: Xxxx X.
Xxxxxxxxx, Vice President-Legal Affairs and Secretary. Any notice, direction,
request or demand by any Noteholder 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 office of the Trustee, The First National Bank of Chicago located
at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Services Division or its agent in the Borough of
Manhattan, located at First Chicago Trust Company of New York, 00 Xxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 13.05. GOVERNING LAW.
This Indenture and each Note shall be governed by and construed and
interpreted in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
SECTION 13.06. 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 in the opinion of the
signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent 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 opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
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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 13.07. BUSINESS DAYS.
In any case where the date of payment of principal of or interest or
Additional Interest on the Notes will not be a Business Day, the payment of such
principal of or interest or Additional Interest on the Notes need not be made on
such date but may be made on the next succeeding Business Day, with the same
force and effect as if made on the date of payment and no interest shall accrue
for the period from and after such date.
SECTION 13.08. TRUST INDENTURE ACT OF 1939 TO CONTROL.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with another provision included in this Indenture which is required
to be included in this Indenture by any of Sections 310 to 317, inclusive, of
the Trust Indenture Act of 1939, such required provision shall control.
SECTION 13.09. 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 the terms or provisions hereof.
SECTION 13.10. 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 13.11. SEPARABILITY.
In case any one or more of the provisions contained in this Indenture or in
the Notes shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Indenture or of the Notes, but this Indenture and
the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 13.12. ASSIGNMENT.
The Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly owned Subsidiary
of the Company, provided, that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the foregoing, the
Indenture is binding upon and inures to the benefit of the parties thereto and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 13.13. NO SINKING FUND.
The Notes are not entitled to the benefit of any sinking fund.
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The First National Bank of Chicago hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
TRENWICK GROUP INC.
By: /s/ XXXXX X. XXXXXXX, XX.
------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chairman, President and
Chief
Executive Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
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EXHIBIT A
(FORM OF FACE OF NOTE)
[IF THE NOTE IS A GLOBAL NOTE, INSERT: THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS (A) THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK LIMITED PURPOSE TRUST COMPANY ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
(B) ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
[FOR INITIAL NOTES ONLY: THE NOTE REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS NOTE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSE AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO IT, AND (ii) PURSUANT TO CLAUSE (E) TO
REQUIRE THAT THE TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM THE TRANSFEREE
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE).
SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]
A-1
43
NO. _____ CUSIP NO. _____
TRENWICK GROUP INC.
6.70% SENIOR NOTES DUE APRIL 1, 2003
Trenwick Group Inc., a Delaware corporation (the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to , or registered
assigns, the principal sum of U.S. dollars ($ ) on April
1, 2003 (the "Stated Maturity") and to pay interest on the outstanding principal
amount hereof from March 27, 1998, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, semi-annually in arrears on April 1 and October 1 of each
year, commencing October 1, 1998, at the rate of 6.70% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded semi-annually. Any reference
herein to "interest" on the Notes shall also refer to Additional Interest, to
the extent such Additional Interest is payable pursuant to the Registration
Rights Agreement. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year of twelve 30-day months and,
for any period less than 6 months, the actual months elapsed and the actual days
elapsed in a partial month in such period. In the event that any date on which
the principal of or interest on this Note is payable is not a Business Day, then
payment payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date.
The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Note (or one or more Predecessor Notes, as defined
in said Indenture) is registered at the close of business on the Regular Record
Date for such interest installment, which shall be the March 15 or September 15
preceding the relevant interest payment date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
holders on such Regular Record Date and may be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the holders of Notes
not less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
maybe required by such exchange, all as more fully provided in the Indenture.
The principal of and interest on this Note shall be payable at the office
or agency of the Trustee in the City of New York, in the State of New York, or
at such other office or agency as the Company may designate for that purpose, in
any coin or currency of the United States of America that at the time of payment
is legal tender for payment of public and private debts; payments in respect of
the Notes represented by the Global Note shall be made by wire transfer of
immediately available funds to the Depositary, which shall credit the relevant
accounts at the Depositary. With respect to Definitive Notes, the Company will
make all payments by wire transfer of immediately available funds to the
accounts specified, by the Holders thereof or, if no such account is specified,
by mailing a check to such Holder's registered address.
This Note is not subject to redemption prior to its Stated Maturity.
By its acceptance hereof, the Holder agrees to be bound by the terms of the
Registration Rights Agreement.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof and
such provisions shall for all purposes have the same effect as though fully set
forth at this place.
A-2
44
IN WITNESS WHEREOF, the Company has caused this instrument to he executed.
Dated:
-------------------------------------------------
TRENWICK GROUP INC.
By:
--------------------------------------
Name:
Title:
Attest:
By:
--------------------------------------
Name:
Title:
A-3
45
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:
--------------------------------------
Authorized Officer
A-4
46
(FORM OF REVERSE OF NOTE)
This Note is one of the Notes of the Company (herein sometimes referred to
as the "Notes"), specified in the Indenture, all issued or to be issued under
and pursuant to an Indenture, dated as of March 27, 1998 (the "Indenture"), duly
executed and delivered between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee"), to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in principal amount of the Notes
at the time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of modifying in any
manner the rights of the holders of the Notes; provided, however, that no such
supplemental indenture shall, without the consent of each holder of Notes then
outstanding and affected thereby, (i) extend the Stated Maturity of any Notes,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or make the principal of, or interest on, the Notes
payable in any coin or currency other than U.S. dollars, or impair or affect the
right of any holder of Notes to institute suit for the payment thereof, or (ii)
reduce the aforesaid percentage of Notes, the holders of which are required to
consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in principal amount of the Notes
at the time outstanding, on behalf of all of the holders of the Notes, to waive
any past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture, and its consequences,
except a Default in the payment of the principal of, or interest on any of the
Notes or a Default in respect of any covenant or provision under which the
Indenture cannot be modified or amended without the consent of each holder of
Notes then outstanding. Any such consent or waiver by the holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future holders and owners of this Note and of any
Note issued in exchange heretofore or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and interest on this Note
at the time and place and at the rate and in the money herein prescribed.
The Notes are issuable only in registered form without coupons in
denominations of $1,000.00 and any integral multiple thereof. As provided in the
Indenture, this Note is transferable by the holder hereof on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Trustee in the City and State of New
York accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and the registrar may deem and treat the
holder hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Note registrar) for the purpose of receiving payment of or
on account of the principal hereof, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
registrar shall be affected by any notice to the contrary.
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47
No recourse shall be had for the payment of the principal of, or interest
on this Note, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture, against any incorporator, stockholder,
officer or director, past, present or future, as such, of the Company or of any
predecessor or successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
A-6
48
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note
Certificate to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Note Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
---------------------------------------------
Signature:
---------------------------------------------
(Sign exactly as your name appears on the other side of this Note Certificate)
Signature Guarantee:
---------------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
A-7
49
[FOR INITIAL NOTES ONLY]
EXHIBIT B
TRANSFEREE LETTER OF REPRESENTATION
Trenwick Group Inc.
Metro Center
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services Division
Dear Sirs:
In connection with the proposed transfer to us of $ principal
amount of 6.70% Senior Notes due April 1, 2003 (the "Notes") of Trenwick Group
Inc. (the "Company"), we confirm that:
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or other
applicable securities laws, and may not be offered, sold or otherwise
transferred except as permitted in the following sentence. We agree on our
behalf and on behalf of any investor account for which we are purchasing
Notes to offer, sell or otherwise transfer such Notes prior to the date
which is two years after the later of the date of original issue thereof
and the last date on which the Company or any "affiliate" of the Company
was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Notes are eligible for resale pursuant
to Rule 144A under the Securities Act, to a person we reasonably believe is
a "qualified institutional buyer" (a "QIB") as defined in Rule 144A of the
Securities Act that purchases for its own account or for the account of a
QIB to whom notice is given that the transfer is being made in reliance on
rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act, (e) to an institutional "Accredited Investor" (an
"Institutional Accredited Investor") within the meaning of Rule 501 (a)(1),
(2), (3) or (7) of Regulation D under the Securities Act that is acquiring
the Notes for its own account or for the account of such an Institutional
Accredited Investor for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act, or (f) pursuant to any other available exemption from the
registration requirements under the Securities Act, subject to the right of
the Company prior to any such offer, sale or transfer (i) pursuant to
clause (d), (e) or (f) above to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to it and
(ii) pursuant to clause (e) above to require that the transferor deliver to
the Company a letter from the transferee substantially similar to this
letter.
2. We are Institutional Accredited Investor purchasing for our own
account or for the account of such and Institutional Accredited Investor
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act or any
other applicable securities laws and we have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Notes, and we and any accounts for which
we are acting are each able to bear the economic risk of our or its
investment for an indefinite period.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion and
for each of which we are acquiring not less than $100,000 total principal
amount of Notes
B-1
50
4. We understand that the Notes are being sold to us pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. We are not purchasing the notes with a
view to the resale, distribution or other disposition thereof.
5. You and the company are entitled to rely upon this letter and you
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
6. As used herein, the term "United States" has the meaning given to
it by Rule 904 under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
Very truly yours,
--------------------------------------
Name of Purchaser
By:
--------------------------------------
Date:
--------------------------------------
Upon transfer, the Notes would be registered in the name of the new beneficial
owner as follows:
Name:
--------------------------------------------------------
Address:
------------------------------------------------------
Taxpayer ID Number:
---------------------------------------
B-2
