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EVEREST REINSURANCE HOLDINGS, INC.
To
THE CHASE MANHATTAN BANK
Trustee
___________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 14, 2000
8.50% Senior Notes due March 15, 2005
___________________
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TABLE OF CONTENTS/1/
Page
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ARTICLE I
8.50% Senior Notes due March 15, 2005
Section 101. Establishment................................................ 1
Section 102. Definitions.................................................. 3
Section 103. Payment of Principal and Interest............................ 3
Section 104. Denominations................................................ 4
Section 105. Global Securities............................................ 4
Section 106. Paying Agent................................................. 5
ARTICLE II
Miscellaneous Provisions
Section 201. Recitals by Company.......................................... 6
Section 202. Ratification and Incorporation of Original Indenture......... 6
Section 203. Executed in Counterparts..................................... 6
Exhibit A. Form of 8.50% Senior Note due March 15, 2005
Exhibit B. Certificate of Authentication
___________________
/1/ This Table of Contents does not constitute part of the Indenture or
have any bearing upon the interpretation of any of its terms or provisions.
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THIS FIRST SUPPLEMENTAL INDENTURE is made as of the 14th day of March,
2000, by and between EVEREST REINSURANCE HOLDINGS, INC., a Delaware corporation,
having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and THE CHASE MANHATTAN BANK, a New
York banking corporation, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into an Indenture, dated as of
March 14, 2000 (the "Original Indenture"), with The Chase Manhattan Bank, as
Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as amended and supplemented to the date hereof,
including by this Supplemental Indenture, is herein called the "Indenture";
WHEREAS, under the Indenture, a new series of Securities may at any time be
established in accordance with the provisions of the Indenture and the terms of
such series may be described by a supplemental indenture executed by the Company
and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a new series of
Securities;
WHEREAS, additional Securities of other series hereafter established,
except as may be limited in the Indenture as at the time supplemented and
modified, may be issued from time to time pursuant to the Indenture as at the
time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this Supplemental Indenture and to make it a valid and binding obligation of
the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
8.50% Senior Notes due March 15, 2005
Section 101. Establishment.
There is hereby established a new series of Securities to be issued under
the Indenture, to be designated as the Company's 8.50% Senior Notes due March
15, 2005 (the "Notes").
There are to be authenticated and delivered $250,000,000 principal amount
of Notes, and no further Notes shall be authenticated and delivered except as
provided by ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇,
▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇ of the Original Indenture. The Notes shall be issued in fully
registered form without coupons.
The Notes shall be in substantially the form set out in Exhibit A hereto,
and the form of the Trustee's Certificate of Authentication for the Notes shall
be in substantially the form set forth in Exhibit B hereto.
Each Note shall be dated the date of authentication thereof and shall bear
interest from the date of original issuance thereof or from the most recent
Interest Payment Date to which interest has been paid or duly provided for.
There shall be the following additions to the covenants set forth in the
Original Indenture with respect to the Notes, which shall be effective only so
long as any of the Notes are Outstanding:
Limitations on Sales of Restricted Subsidiaries' Capital Stock. The Company
shall not sell, transfer or otherwise dispose of any shares of capital stock of
a Restricted Subsidiary (other than directors' qualifying shares or sales to
Restricted Subsidiaries), and it shall not permit any Restricted Subsidiary to
sell, transfer or otherwise dispose of any shares of capital stock of any other
Restricted Subsidiary (other than directors' qualifying shares or sales or other
transfers to the Company or to a Restricted Subsidiary), unless the entire
capital stock of such Restricted Subsidiary at the time owned by the Company and
its Restricted Subsidiaries shall be disposed of at the same time for a
consideration consisting of cash or other property, which, in the opinion of the
Board of Directors of the Company, is at least equal to the fair value thereof.
Limitations on Liens on Restricted Subsidiaries' Capital Stock. The Company
shall not, and it shall not permit any Restricted Subsidiary at any time
directly or indirectly to, create, assume, incur or permit to exist any
indebtedness secured by a pledge, lien or other encumbrance on the capital stock
of any Restricted Subsidiary without making effective provision whereby the
Notes then Outstanding (and, if the Company so elects, any other indebtedness
ranking on a parity with the Notes) shall be equally and ratably secured with
such secured indebtedness so long as such other indebtedness shall be secured.
For purposes of the Indenture, "Restricted Subsidiary" means a Subsidiary
which is a regulated insurance company principally engaged in one or more of the
life, annuity, property and casualty insurance businesses; provided, however,
that no such Subsidiary shall be a Restricted Subsidiary if (1) (a) the total
assets of such Subsidiary are less than 10% of the total assets of the Company
and its consolidated Subsidiaries (including such Subsidiary), in each case as
set forth on the most recent fiscal year-end balance sheets of such Subsidiary
and the Company and its consolidated Subsidiaries, respectively, and computed in
accordance with United States generally accepted accounting principles ("GAAP"),
and (b) the total revenues of such Subsidiary are less than 10% of the total
revenues of the Company and its consolidated Subsidiaries (including such
Subsidiary), in each case as set forth on the most recent fiscal year-end income
statements of such Subsidiary and the Company and its consolidated Subsidiaries,
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respectively, and computed in accordance with GAAP or (2) in the judgment of the
Board of Directors, as evidenced by a Board Resolution, such Subsidiary is not
material to the financial condition of the Company and its consolidated
Subsidiaries taken as a whole.
The preceding additional covenants are included in the Original Indenture
solely for the benefit of the Holders of the Notes, and for purposes of Sections
1009 and 1303 of the Original Indenture, shall be deemed covenants provided by
Sections 301(19), 901(1) and 901(3) thereof for the benefit of such Holders
Section 102. Definitions.
The following defined terms used herein shall, unless the context otherwise
requires, have the meanings specified below. Capitalized terms used herein for
which no definition is provided herein shall have the meanings set forth in the
Original Indenture.
"Interest Payment Dates" means March 15 and September 15 of each year,
commencing September 15, 2000.
"Original Issue Date" means March 14, 2000.
"Regular Record Date" means, with respect to each Interest Payment Date,
the close of business on the respective March 1 and September 1 prior to such
Interest Payment Date.
"Stated Maturity" means March 15, 2005.
Section 103. Payment of Principal and Interest.
The principal of the Notes shall be due at Stated Maturity. The unpaid
principal amount of the Notes shall bear interest at the rate of 8.50% per annum
until paid or duly provided for, such interest to accrue from March 14, 2000 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for. Interest shall be paid semi-annually in arrears on each
Interest Payment Date to the Person or Persons in whose name the Notes are
registered on the Regular Record Date for such Interest Payment Date; provided,
however, that interest payable at the Stated Maturity of principal as provided
herein shall be paid to the Person to whom principal is payable. Any such
interest that is not so punctually paid or duly provided for shall forthwith
cease to be payable to the Holders on such Regular Record Date and may either be
paid to the Person or Persons in whose name the Notes are registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee ("Special Record Date"), notice whereof
shall be given to Holders of the Notes not less than ten (10) days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on which
the Notes may be listed, and upon such notice as may be required by any such
exchange, all as more fully provided in the Original Indenture.
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Payments of interest on the Notes shall include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for the
Notes shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on the Notes is
not a Business Day, then payment of the interest payable on such date shall be
made on the next succeeding day that is a Business Day (and without any interest
or payment in respect of any such delay) with the same force and effect as if
made on the date the payment was originally payable. "Business Day" means a day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in New York, New York are authorized or obligated by law or executive order to
remain closed or (iii) a day on which the Corporate Trust Office is closed for
business.
Payment of principal of, premium, if any, and interest on the Notes shall
be made in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. Payments of
principal of, premium, if any, and interest on Notes represented by a Global
Security shall be made by wire transfer of immediately available funds to the
Holder of such Global Security; provided, however, that in the case of payments
of principal and premium, if any, such Global Security is first surrendered to
the Paying Agent. If any of the Notes are no longer represented by a Global
Security, (i) payments of principal, premium, if any, and interest due at the
Stated Maturity shall be made at the office of the Paying Agent upon surrender
of such Notes to the Paying Agent and (ii) payments of interest shall be made,
at the option of the Company, subject to such surrender where applicable, (A) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (B) by wire transfer at such place and to
such account at a banking institution in the United States as may be designated
in writing to the Trustee at least sixteen (16) days prior to the date for
payment by the Person entitled thereto.
Section 104. Denominations.
The Notes shall be issued in denominations of $1,000 or any integral
multiple thereof.
Section 105. Global Securities.
The Notes shall initially be issued in the form of one or more Global
Securities registered in the name of the Depositary (which initially shall be
The Depository Trust Company) or its nominee. Except under the limited
circumstances described below, Notes represented by such Global Security or
Global Securities shall not be exchangeable for, and shall not otherwise be
issuable as, Notes in definitive form. The Global Securities described above may
not be transferred except by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary or to a successor Depositary or its nominee.
A Global Security shall be exchangeable for Notes registered in the names
of persons other than the Depositary or its nominee only if (i) the Depositary
notifies the Trustee and the Company that it is no longer willing or able to
properly discharge its responsibilities as a
-4-
Depositary for such Global Security and no qualified successor Depositary shall
have been appointed by the Company within 90 days of receipt by the Company of
such notification, or if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as such Depositary and no qualified
successor Depositary shall have been appointed by the Company within 90 days
after it becomes aware of such cessation, (ii) the Company executes and delivers
to the Trustee a Company Order stating that the Company elects to terminate the
book-entry system through the Depositary, or (iii) there shall have occurred and
be continuing an Event of Default with respect to the Global Security. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Notes as provided in the Original Indenture.
The Notes shall not have a sinking fund and are not redeemable prior to
their Stated Maturity.
Section 106. Paying Agent.
The Trustee shall initially serve as Paying Agent with respect to the
Notes, with the Place of Payment initially being the Corporate Trust Office.
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ARTICLE II
Miscellaneous Provisions
Section 201. Recitals by Company.
The recitals in this Supplemental Indenture are made by the Company only
and not by the Trustee, and all of the provisions contained in the Original
Indenture in respect of the rights, privileges, immunities, powers and duties of
the Trustee shall be applicable in respect of the Notes and this Supplemental
Indenture as fully and with like effect as if set forth herein in full.
Section 202. Ratification and Incorporation of Original Indenture.
As supplemented hereby, the Original Indenture is in all respects ratified
and confirmed, and the Original Indenture and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument.
Section 203. Executed in Counterparts.
This Supplemental Indenture may be executed in several counterparts, each
of which shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the day
and year first above written.
EVEREST REINSURANCE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Attest: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
--------------------------
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Exhibit A
Form of
8.50% Senior Note due March 15, 2005
EVEREST REINSURANCE HOLDINGS, INC.
8.50% Senior Note due March 15, 2005
No.
CUSIP ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇: $
Regular Record Date: close of business on the respective March 1 and
September 1 prior to the relevant Interest Payment Date.
Original Issue Date: March 14, 2000
Stated Maturity: March 15, 2005
Interest Payment Dates: March 15 and September 15
Interest Rate: 8.50% per annum
Authorized Denomination: $1,000 or any integral multiple thereof
EVEREST REINSURANCE HOLDINGS, INC., a Delaware corporation (the "Company,"
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to ,
or registered assigns, the principal sum of DOLLARS ($ )
on the Stated Maturity shown above and to pay interest thereon from the Original
Issue Date shown above, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on each
Interest Payment Date as specified above, commencing on September 15, 2000, and
on the Stated Maturity at the rate per annum shown above (the "Interest Rate")
until the principal hereof is paid or made available for payment and on any
overdue principal and on any overdue installment of interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
(other than an Interest Payment Date that is the Stated Maturity) will, as
provided in the Indenture, be paid to the Person in whose name this 8.50% Senior
Note due March 15, 2005 (this "Security") is registered on the Regular Record
Date as specified above next preceding such Interest Payment Date; provided,
however, that any interest payable at Stated Maturity will be paid to the Person
to whom principal is payable. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the
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requirements of any securities exchange, if any, on which the Securities of this
series shall be listed, and upon such notice as may be required by any such
exchange, all as more fully provided in the Indenture.
Payments of interest on this Security will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this
Security shall be computed and paid on the basis of a 360-day year of twelve 30-
day months. In the event that any date on which interest is payable on this
Security is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. "Business Day"
means a day other than (i) a Saturday or a Sunday, (ii) a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office is closed for business.
Payment of principal of, premium, if any, and interest on the Securities of
this series shall be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payments of principal of, premium, if any, and interest on
Securities of this series represented by a Global Security shall be made by wire
transfer of immediately available funds to the Holder of such Global Security;
provided, however, that in the case of payments of principal and premium, if
any, such Global Security is first surrendered to the Paying Agent. If any of
the Securities of this series are no longer represented by a Global Security,
(i) payments of principal, premium, if any, and interest due at the Stated
Maturity shall be made at the office of the Paying Agent upon surrender of such
Securities to the Paying Agent and (ii) payments of interest shall be made, at
the option of the Company, subject to such surrender where applicable, (A) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (B) by wire transfer at such place and to
such account at a banking institution in the United States as may be designated
in writing to the Trustee at least sixteen (16) days prior to the date for
payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
EVEREST REINSURANCE HOLDINGS, INC.
By: ________________________________
Attest: ____________________
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:________________________
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(Reverse of Security)
This Security is one of a duly authorized issue of Securities of the
Company (the "Securities"), issued and issuable in one or more series under an
Indenture, dated as of March 14, 2000, (the "Senior Indenture") as supplemented
by the First Supplemental Indenture dated as of March 14, 2000 (the
"Supplemental Indenture" and together with the Senior Indenture, the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities issued thereunder and of the terms upon which said Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof as 8.50% Senior Notes due March 15, 2005 in the
aggregate principal amount of up to $250,000,000. Capitalized terms used herein
for which no definition is provided herein shall have the meanings set forth in
the Indenture.
The Securities of this series are not redeemable prior to Stated Maturity.
If an Event of Default with respect to the Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities of each series affected thereby at the time Outstanding. The
Indenture contains provisions permitting the Holders of not less than a majority
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company for such purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and
A-5
the Security Registrar and duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities of this
series, of authorized denominations and of like tenor and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Outstanding Securities of this series shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Outstanding Securities of this series a direction inconsistent with such request
and shall have failed to institute any such proceeding for 60 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Securities of this series and for covenant defeasance at any
time of certain covenants in the Indenture upon compliance with certain
conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to the limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged at the office or agency of the Company.
This Security shall be governed by, and construed in accordance with, the
internal laws of the State of New York, without regard to conflict of laws
principles thereof.
A-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT--________ Custodian
________
(Cust)
(Minor)
under Uniform Gifts to Minors Act
TEN ENT-- as tenants by the entireties __________________________________
(State)
JT TEN -- as joint tenants with rights of
survivorship and not as tenants
in common
Additional abbreviations may also be used though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto ________
__________________________ (please insert Social Security or other identifying
number of assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ________________________________ agent to transfer said Security
on the books of the Company, with full power of substitution in the premises.
Dated: _________________ By:_____________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within instrument in every particular
without alteration or enlargement, or any change
whatever.
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Exhibit B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:___________________________
Authorized Officer
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