USF&G CORPORATION
TO
SIGNET TRUST COMPANY,
TRUSTEE
INDENTURE
Dated as of January 28, 1994
Senior Debt Securities
USF&G CORPORATION
Reconciliation and tie between certain Sections of
this Indenture, dated as of January 28, 1994, and
Section 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . .609
(a)(2) . . . . . . . . . . . . . . . . . .609
(a)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . .608
610
Section 311(a) . . . . . . . . . . . . . . . . . .613
(b) . . . . . . . . . . . . . . . . . .613
Section 312(a) . . . . . . . . . . . . . . . . . .701
. . . . . . . . . . . . . . . . . . 702(a)
(b) . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . .704
(a)(4) . . . . . . . . . . . . . . . . . .101
1004
(b) . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . .102
(c)(2) . . . . . . . . . . . . . . . . . .102
(c)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . .102
Section 315(a) . . . . . . . . . . . . . . . . . .601
(b) . . . . . . . . . . . . . . . . . .602
(c) . . . . . . . . . . . . . . . . . .601
(d) . . . . . . . . . . . . . . . . . .601
(e) . . . . . . . . . . . . . . . . . .514
Section 316(a) . . . . . . . . . . . . . . . . . .101
(a)(1)(A) . . . . . . . . . . . . . . . . . .502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . .513
(a)(2) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . .508
(c) . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . .503
(a)(2) . . . . . . . . . . . . . . . . . .504
(b) . . . . . . . . . . . . . . . . . .1003
Section 318(a) . . . . . . . . . . . . . . . . . .107
- --
271.Z02058B:1/20/94
4523-20
TABLE OF CONTENTS
PAGE
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . .1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. . . . . . . . . . . . . . . . .1
Act. . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent . . . . . . . . . . . .2
Board of Directors . . . . . . . . . . . . .2
Board Resolution . . . . . . . . . . . . . .2
Business Day . . . . . . . . . . . . . . . .3
Commission . . . . . . . . . . . . . . . . .3
Common Stock . . . . . . . . . . . . . . . .3
Company. . . . . . . . . . . . . . . . . . .3
Company Request; Company Order . . . . . . .3
Corporate Trust Office . . . . . . . . . . .4
Corporation. . . . . . . . . . . . . . . . .4
Covenant Defeasance. . . . . . . . . . . . .4
Defaulted Interest . . . . . . . . . . . . .4
Defeasance . . . . . . . . . . . . . . . . .4
Depositary . . . . . . . . . . . . . . . . .4
Event of Default . . . . . . . . . . . . . .4
Exchange Act . . . . . . . . . . . . . . . .4
Floating or Adjustable Rate Provision. . . .4
Floating or Adjustable Rate Security . . . .4
Foreign Government Obligations . . . . . . .4
Global Security. . . . . . . . . . . . . . .4
Holder . . . . . . . . . . . . . . . . . . .5
Indenture. . . . . . . . . . . . . . . . . .5
Interest . . . . . . . . . . . . . . . . . .5
Interest Payment Date. . . . . . . . . . . .5
Maturity . . . . . . . . . . . . . . . . . .5
Notice of Default. . . . . . . . . . . . . .5
Officers' Certificate. . . . . . . . . . . .5
Opinion of Counsel . . . . . . . . . . . . .6
Original Issue Discount Security . . . . . .6
Outstanding. . . . . . . . . . . . . . . . .6
Paying Agent . . . . . . . . . . . . . . . .7
Person . . . . . . . . . . . . . . . . . . .7
Place of Payment . . . . . . . . . . . . . .7
Predecessor Security . . . . . . . . . . . .7
Principal Insurance Subsidiary . . . . . . .8
Redempton Date . . . . . . . . . . . . . . .8
Redemption Price . . . . . . . . . . . . . .8
Regular Record Date. . . . . . . . . . . . .8
Responsible Officer. . . . . . . . . . . . .8
Securities . . . . . . . . . . . . . . . . .8
Security Register and Security Registrar . .8
Special Record Date. . . . . . . . . . . . .9
Stated Maturity. . . . . . . . . . . . . . .9
Subsidiary . . . . . . . . . . . . . . . . .9
Trustee. . . . . . . . . . . . . . . . . . .9
Trust Indenture Act. . . . . . . . . . . . .9
U.S. Government Obligations. . . . . . . . .9
Vice President . . . . . . . . . . . . . . .9
Section 102. Compliance Certificates and Opinions . . . .9
Section 103. Form of Documents Delivered to Trustee . . .10
Section 104. Acts of Holders; Record Dates. . . . . . . .11
Section 105. Notices, Etc., to Trustee and Company. . . .13
Section 106. Notice to Holders; Waiver. . . . . . . . . .13
Section 107. Conflict with Trust Indenture Act. . . . . .14
Section 108. Effect of Headings and Table of Contents . .14
Section 109. Successors and Assigns . . . . . . . . . . .14
Section 110. Separability Clause. . . . . . . . . . . . .14
Section 111. Benefits of Indenture. . . . . . . . . . . .14
Section 112. Governing Law. . . . . . . . . . . . . . . .14
Section 113. Legal Holidays . . . . . . . . . . . . . . .15
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc . . . . . .15
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. . . . . . . . . . . . . . .15
Section 202. Form of Face of Security . . . . . . . . . .16
Section 203. Form of Reverse of Security. . . . . . . . .19
Section 204. Form of Legend for Global Securities . . . .24
Section 205. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . .25
Section 206. Form of Conversion Notice. . . . . . . . . .25
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . . . .27
Section 302. Denominations. . . . . . . . . . . . . . . .30
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . .30
Section 304. Temporary Securities . . . . . . . . . . . .32
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . .33
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . .35
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . .36
Section 308. Persons Deemed Owners. . . . . . . . . . . .38
Section 309. Cancellation . . . . . . . . . . . . . . . .38
Section 310. Computation of Interest. . . . . . . . . . .39
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. . .39
Section 402. Application of Trust Fund. . . . . . . . . .41
ARTICLE FIVE
REMEDIES
Section 501. Events of Default. . . . . . . . . . . . . .41
Section 502. Acceleration of Maturity; Rescission
and Annulment. . . . . . . . . . . . . . . .45
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . .47
Section 504. Trustee May File Proofs of Claim . . . . . .48
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . .89
Section 506. Application of Money Collected . . . . . . .49
Section 507. Limitation on Suits. . . . . . . . . . . . .49
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest
and to Convert . . . . . . . . . . . . . .50
Section 509. Restoration of Rights and Remedies . . . . .50
Section 510. Rights and Remedies Cumulative . . . . . . .51
Section 511. Delay or Omission Not Waiver . . . . . . . .51
Section 512. Control by Holders . . . . . . . . . . . . .51
Section 513. Waiver of Past Defaults. . . . . . . . . . .52
Section 514. Undertaking for Costs. . . . . . . . . . . .53
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities. . . . .53
Section 602. Notice of Defaults . . . . . . . . . . . . .53
Section 603. Certain Rights of Trustee. . . . . . . . . .54
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . .55
Section 605. May Hold Securities. . . . . . . . . . . . .55
Section 606. Money Held in Trust. . . . . . . . . . . . .56
Section 607. Compensation and Reimbursement . . . . . . .56
Section 608. Disqualification; Conflicting
Interests. . . . . . . . . . . . . . . . . .57
Section 609. Corporate Trustee Required; Eligibility. . .57
Section 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . .57
Section 611. Acceptance of Appointment by Successor . . .59
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . .61
Section 613. Preferential Collection of Claims
Against Company. . . . . . . . . . . . . . .61
Section 614. Appointment of Authenticating Agent. . . . .61
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . .63
Section 702. Preservation of Information;
Communications to Holders. . . . . . . . . .64
Section 703. Reports by Trustee . . . . . . . . . . . . .64
Section 704. Reports by Company . . . . . . . . . . . . .64
ARTICLE EIGHT
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 801. Company May Consolidate, Etc., Only on
Certain Terms. . . . . . . . . . . . . . . .65
Section 802. Successor Substituted. . . . . . . . . . . .66
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . .67
Section 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . .68
Section 903. Execution of Supplemental Indentures . . . .70
Section 904. Effect of Supplemental Indentures. . . . . .70
Section 905. Conformity with Trust Indenture Act. . . . .70
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . .71
Section 907. Waiver of Compliance by Holders. . . . . . .71
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest .71
Section 1002. Maintenance of Office or Agency. . . . . . .71
Section 1003. Money for Securities Payments to be
Held in Trust. . . . . . . . . . . . . . . .72
Section 1004. Statement by Officers as to Default. . . . .73
Section 1005. Limitations on Liens on Common Stock of
Principal Insurance Subsidiaries . . . . . .74
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . .74
Section 1102. Election to Redeem, Notice to Trustee. . . .74
Section 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . .75
Section 1104. Notice of Redemption . . . . . . . . . . . .75
Section 1105. Deposit of Redemption Price. . . . . . . . .76
Section 1106. Securities Payable on Redemption Date. . . .77
Section 1107. Securities Redeemed in Part. . . . . . . . .77
ARTICLE TWELVE
CONVERSION OF SECURITIES
Section 1201. Applicability of Article . . . . . . . . . .78
Section 1202. Exercise of Conversion Privilege . . . . . .78
Section 1203. No Fractional Shares . . . . . . . . . . . .79
Section 1204. Adjustment of Conversion Price . . . . . . .80
Section 1205. Notice of Certain Corporate Actions. . . . .80
Section 1206. Reservation of Shares of Common Stock. . . .82
Section 1207. Payment of Certain Taxes Upon Conversion . .82
Section 1208. Nonassessability . . . . . . . . . . . . . .82
Section 1209. Effect of Consolidation or Merger on
Conversion Privilege . . . . . . . . . . . .82
Section 1210. Duties of Trustee Regarding Conversion . . .84
Section 1211. Repayment of Certain Funds Upon Conversion .84
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . . .85
Section 1302. Defeasance and Discharge . . . . . . . . . .85
Section 1303. Covenant Defeasance. . . . . . . . . . . . .85
Section 1304. Conditions to Defeasance or
Covenant Defeasance. . . . . . . . . . . . .86
Section 1305. Deposited Money and U.S. Government
Obligations or Foreign Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . . .90
Section 1306. Reinstatement. . . . . . . . . . . . . . . .91
ARTICLE FOURTEEN
SINKING FUNDS
Section 1401. Applicability of Article . . . . . . . . . .91
Section 1402. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . .91
Section 1403. Redemption of Securities for Sinking Fund. .92
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . .93
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . .94
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . .94
NOTE: This table of contents shall not, for any
purpose, be deemed to be a part of the Indenture.
INDENTURE, dated as of January 28, 1994, between USF&G
CORPORATION, a Maryland corporation (herein called the
"Company"), having its principal office at 100 Light Street,
Baltimore, Maryland 21202, and SIGNET TRUST COMPANY, a banking
association incorporated and existing under the laws of the
Commonwealth of Virginia, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of its debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more
series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders
of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have
the meanings assigned to them in this Article
and include the plural as well as the singular;
(2) all other terms used herein which are
defined in the Trust Indenture Act or the
Securities Act of 1933, as amended, either
directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to
them in accordance with generally accepted
accounting principles, and, except as otherwise
herein expressly provided, the term "generally
accepted accounting principles" with respect to
any computation required or permitted hereunder
shall mean such accounting principles as are
generally accepted at the date of such
computation;
(4) the words "Article" and "Section" refer
to an Article and Section, respectively, of this
Indenture; and
(5) the words "herein", "hereof" and
"hereunder" and other words of similar import
refer to this Indenture as a whole and not to
any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee
to authenticate Securities of one or more series.
"Board of Directors" means either (i) the board of
directors of the Company, the executive committee of such board
of directors or any other duly authorized committee of
directors and/or officers appointed by such board of directors
or executive committee, or (ii) one or more duly authorized
officers of the Company to whom the board of directors of the
Company or a committee thereof has delegated the authority to
act with respect to the matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution
certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company to have been duly adopted by the Board
of Directors or a committee thereof and to be in full force and
effect on the date of such certification or (ii) a certificate
signed by the authorized officer or officers of the Company to
whom the board of directors of the Company or a committee
thereof has delegated its authority (as described in the
definition of Board of Directors), and in each case, delivered
to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law, regulation or
executive order to close.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange
Act, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to the Company, its
common stock, $2.50 par value per share, or any other shares of capital
stock of the Company into which the Common Stock shall be reclassified or
changed and with respect to any Principal Insurance Subsidiary, stock of
any class, however designated, except stock which is non-participating
beyond fixed dividend and liquidation preferences and the holders of
which have either no voting rights or limited voting rights
entitling them, only in the case of certain contingencies, to
elect less than a majority of the directors (or persons
performing similar functions) of such Principal Insurance
Subsidiary, and shall include securities of any class, however
designated, which are convertible into such Common Stock.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by (i) any
two of the following individuals: the Chairman, the President,
an Executive Vice President or a Vice President or (ii) by one
of the foregoing individuals and by any other Vice President,
the Treasurer, an Assistant Treasurer, the Corporate Secretary
or an Assistant Corporate Secretary or any other individual
authorized by the Board of Directors for such purpose, and
delivered to the Trustee.
"conversion price" means the amount of Common Stock issuable upon
conversion of any Securities and, in the case of any specific series of
Securities may be expressed in terms of either a conversion price or a
conversion rate.
"Corporate Trust Office" means the principal office of the
Trustee currently located at 7 St. Paul Street, Baltimore, Maryland 21202
at which at any particular time its corporate trust business
shall be administered.
"Corporation" means a corporation, association, company,
joint-stock company, partnership or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more
Global Securities, a clearing agency registered under the
Exchange Act that is designated to act as Depositary for such
Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section
501.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute
thereto.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an
indenture supplemental hereto, providing for the determination,
whether pursuant to objective factors or pursuant to the sole
discretion of any Person (including the Company), and periodic
adjustment of the interest rate borne by a Floating or
Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security
which provides for interest thereon at a periodic rate that may
vary from time to time over the term thereof in accordance with
a Floating or Adjustable Rate Provision.
"Foreign Government Obligations" has the meaning specified
in Section 1304.
"Global Security" means a Security that evidences all or
part of the Securities of any series and is authenticated and
delivered to, and registered in the name of, the Depositary for
such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture"
shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of
interest on such Security.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security or an
instalment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4).
"Officers' Certificate" means a certificate signed by (i)
any two of the following individuals: the Chairman, the
President, an Executive Vice President or a Vice President, or
(ii) by one of the foregoing individuals and by any other Vice
President, the Treasurer, an Assistant Treasurer, the Corporate
Secretary or an Assistant Corporate Secretary, of the Company,
or any other individual authorized by the Board of Directors
for such purpose, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be an employee of or counsel to the Company or other counsel, and
who is reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or
redemption money in the necessary amount has
been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by
the Company (if the Company shall act as its own
Paying Agent) for the Holders of such
Securities; provided that, if such Securities
are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture
or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities as to which Defeasance has
been effected pursuant to Section 1302; and
(iv) Securities which have been paid pursuant
to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated
and delivered pursuant to this Indenture, other
than any such Securities in respect of which
there shall have been presented to the Trustee
proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (A) the principal amount
of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof
pursuant to Section 502, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units
shall be the U.S. dollar equivalent, determined in the manner
provided as contemplated by Section 301 on the date of original
issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of
the amount determined as provided in (A) above) of such
Security, and (C) Securities owned by the Company or any other
obligor upon the Securities or any Subsidiary of the Company or
of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the
principal of and any premium and interest on the Securities of
that series are payable as specified as contemplated by Section
301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Principal Insurance Subsidiary" means only United States
Fidelity and Guaranty Company and Fidelity and Guaranty Life
Insurance Company, and any other Subsidiary of the Company
which shall hereafter succeed by merger or otherwise to a major
part of the business of one or more of the Principal Insurance
Subsidiaries. The decision as to whether a Subsidiary shall
have succeeded to a major part of the business of one or more
of the Principal Insurance Subsidiaries shall be made in good
faith by the board of directors of the Company or a committee
thereof by the adoption of a resolution so stating, and the
Company shall within 30 days of the date of the adoption of
such resolution deliver to the Trustee a copy thereof,
certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company.
"Redemption Date", when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board
of directors, the chairman or any vice-chairman of the
executive committee of the board of directors, the chairman of
the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security
or any instalment of principal thereof or interest thereon,
means the date specified in such Security as the fixed date on
which the principal of such Security or such instalment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
voting power of which is controlled, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes
of this definition, "voting power" means the power to vote for
the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of
any contingency.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after
the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(excluding certificates provided for in Section 1004) shall
include
(1) a statement that each individual signing
such certificate or opinion has read such
covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each
such individual, such individual has made such
examination or investigation as is necessary to
enable such individual to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion
of each such individual, such condition or
covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or
representations with respect to the matters upon which its
certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company
stating that the information with respect to such factual
matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate, opinion or
representation by an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care
should know, that the certificate, opinion or representation
with respect to such accounting matters upon which its
certificate, statement or opinion may be based is erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one
instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted
by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by a signer
acting in a capacity other than such signer's individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Outstanding Securities of such
series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of
Securities, only the Holders of Securities of such series on
such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register or by a certificate of the Security
Registrar.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security
and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to
any particular Security may do so with regard to all or any
part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such
principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the
Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department,
or
(2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it
at the address of its principal office specified
in the first paragraph of this instrument,
Attention: Treasurer, (until another address is
furnished in writing to the Trustee by the Company).
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at its address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such
notice; provided, however, that the Company or the Trustee,
upon a good faith determination that mailing is in the
circumstances impractical, may give such notice by any other
method which, in the reasonable belief of the Company or, in
the case of the Trustee, of the Company and the Trustee, is
likely to be received by the Holders. In any case where notice
to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose
hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required
under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York,
but without regard to principles of conflicts of laws.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security or the last day on
which a Holder has the right to convert a Security at a
particular conversion price shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of
this Indenture or of the Securities (other than a provision of
the Securities of any series which specifically states that
such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) or conversion need
not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue with respect
to such payment for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case
may be.
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc.
No recourse shall be had for the payment of the principal
of or premium, if any, or interest, if any, on any Security, or
for any claim based thereon, or otherwise in respect of any
Security, or based on or in respect of this Indenture or any
indenture supplemental hereto, against any incorporator, or
against any past, present or future stockholder, director or
officer, as such, of the Company or of any successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being expressly waived and
released as a condition of, and as consideration for, the
execution of this Indenture and the issue of the Securities.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially
the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
as may, consistent herewith, be determined by the officers
executing such Securities, as evidenced by their execution of
the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified
by the Corporate Secretary or an Assistant Corporate Secretary
of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
(Insert any legend required by the Internal Revenue Code
and the regulations thereunder.)
USF&G CORPORATION
No. $
USF&G CORPORATION, a Maryland corporation (herein called
the "Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to , or
registered assigns, the principal sum of
dollars. If other than Dollars, substitute other currency or
currency unit. If the Security is to bear interest prior to
Maturity, insert -- , and to pay interest thereon from
or from the most recent Interest Payment Date to which
interest has been paid or duly provided for,) semi-annually on
............ and ............ in each year. (If other than
semi-annual payments, insert frequency of payments and payment
dates, commencing , at) if the Security is to bear
interest at a fixed rate, insert - the rate of ....% per annum
if the Security is a Floating or Adjustable Rate Security,
insert -- a rate per annum computed-determined in accordance
with, -- insert defined name of Floating or Adjustable Rate
Provision set forth below. If the security is to bear interest
at a rate determined with reference to an index, refer to
description of index below) until the principal hereof is paid
or made available for payment if applicable, insert -- , and
(to the extent that the payment of such interest shall be
legally enforceable) at the rate of % per annum on any
overdue principal and premium and on any overdue instalment of
interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest, which shall be the or (whether or
not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said
Indenture.
(If the Securities are Floating or Adjustable Rate
Securities with respect to which the principal of or any
premium or interest may be determined with reference to an
index, insert the text of the Floating or Adjustable Rate
Provision.)
(If the Security is not to bear interest prior to
Maturity, insert -- The principal of this Security shall not
bear interest except in the case of a default in payment of
principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of % per annum compounded
semi-annually (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default
in payment to the date payment of such principal, including interest
thereon, has been made or duly provided for. All interest on any overdue
principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at
the rate of ......% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall
accrue from the date of such demand for payment to the date
payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.)
Payment of the principal of (and premium, if any) and (if
applicable, insert -- any such interest on this Security will
be made at the office or agency of the Company maintained for
that purpose in , in such coin or currency of the
United States of America. If the Security is denominated in a
currency other than U.S. dollars, specify other currency or
currency unit in which payment of the principal of and any
premium or interest may be made as at the time of payment is
legal tender for payment of public and private debts, if
applicable, insert -- ; provided, however, that at the option
of the Company payment of interest may be made by check mailed
to the address of the Person entitled thereto as such address
shall appear in the Security Register.)
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
USF&G CORPORATION
By
Attest:
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an
Indenture, dated as of (herein called the
"Indenture"), between the Company and , as
Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of
rights, obligations, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on
the face hereof(, limited in aggregate principal amount to $
).
(If applicable, insert -- The Securities of this series
are subject to redemption upon not less than 30 days' nor more
than 60 days' notice by mail, (if applicable, insert -- (1) on
...................
in any year commencing with the year ...... and
ending with the year....... through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2) at any time (on or after ,
19.., as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed (on or before
, %, and if redeemed) during the 12-month period beginning
of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to % of the
principal amount, together in the case of any such redemption.
If applicable, insert -- (whether through operation of the
sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable
to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in
the Indenture.)
(If applicable, insert -- The Securities of this series
are subject to redemption upon not less than 30 days' nor more
than 60 days' notice by mail, (1) on in any year
commencing with the year and ending with the year
through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time on or after
..........., as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning of
the years indicated.
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to % of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise)
with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture. The
sinking fund for this series provides for the redemption on
in each year beginning with the year
and ending with the year of not less
than $ ("mandatory sinking fund") and not more than $
aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the
Company otherwise than through mandatory sinking fund payments
may be credited against subsequent mandatory sinking
fund payments otherwise required to be made in the inverse
order in which they become due.
(If the Security is subject to redemption, insert -- In
the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.)
The Indenture contains provisions for defeasance at any
time of (1) the entire indebtedness of this Security or (2)
certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
(If the Security is convertible into Common Stock of the
Company, insert -- Subject to the provisions of the Indenture,
the Holder of this Security is entitled, at its option, at any
time on or before ___________ (except that, in case this
Security or any portion hereof shall be called for redemption,
such right shall terminate with respect to this Security or
portion hereof, as the case may be, so called for redemption at
the close of business on the date fixed for redemption as
provided in the Indenture unless the Company defaults in making
the payment due upon redemption), to convert the principal
amount of this Security (or any portion hereof which is $1,000
or an integral multiple thereof), into fully paid and
non-assessable shares (calculated as to each conversion to the
nearest 1/100th of a share) of the Common Stock of the Company,
as said shares shall be constituted at the date of conversion,
at the conversion price of $_____ principal amount of
Securities for each share of Common Stock, or at the adjusted
conversion price in effect at the date of conversion determined
as provided in the Indenture, upon surrender of this Security,
together with the conversion notice hereon duly executed, to
the Company at the designated office or agency of the Company
in __________________, accompanied (if so required by the
Company) by instruments of transfer, in form satisfactory to
the Company and to the Trustee, duly executed by the Holder or
by its duly authorized attorney in writing. Such surrender
shall, if made during any period beginning at the close of
business on a Regular Record Date and ending at the opening of
business on the Interest Payment Date next following such
Regular Record Date (unless this Security or the portion being
converted shall have been called for redemption on a Redemption
Date during such period), also be accompanied by payment in
funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal
amount of this Security then being converted. Subject to the
aforesaid requirement for payment and, in the case of a
conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment
Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to
receive an installment of interest (with certain exceptions
provided in the Indenture), no adjustment is to be made on
conversion for interest accrued hereon or for dividends on
shares of Common Stock issued on conversion. The Company is
not required to issue fractional shares upon any such
conversion, but shall make adjustment therefor in cash on the
basis of the current market value of such fractional interest
as provided in the Indenture. The conversion price is subject
to adjustment as provided in the Indenture. In addition, the
Indenture provides that in case of certain consolidations,
mergers or share exchanges to which the Company is a party or
the sale of substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any Holders
of securities, so that this Security, if then outstanding, will
be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and
amount of securities, cash and other property receivable upon
the consolidation, merger, share exchange or sale by a holder
of the number of shares of Common Stock into which this
Security might have been converted immediately prior to such
consolidation, merger, share exchange or sale (assuming such
holder of Common Stock failed to exercise any rights of
election and received per share the kind and amount received
per share by a plurality of non-electing shares) (, assuming if
such consolidation, merger, share exchange or sale is prior to
, 19 , that this Security were convertible at the time
of such consolidation, merger, share exchange or sale at the initial
conversion price specified above as adjusted from , 19
to such time pursuant to the Indenture. In the event of
conversion of this Security in part only, a new Security or
Securities for the unconverted portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.
(If the Security is convertible into other securities of
the Company, specify the conversion features.)
(If the Security is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture.)
(If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for
determining the amount. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.)
The Indenture permits, 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 a majority in principal amount of
the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rates, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registerable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $
and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security is overdue, and neither the
Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal
of (and premium, if any) or interest on this Security, or for
any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and
released.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Section 204. Form of Legend for Global Securities.
Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following
form or such other legends as may be required:
This Security is a Global Security within the
meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or
a nominee thereof. This Security may not be
transferred to, or registered or exchanged for
Securities registered in the name of, any Person
other than the Depositary or a nominee thereof
and no such transfer may be registered, except
in the limited circumstances described in the
Indenture. Every Security authenticated and
delivered upon registration of transfer of, or
in exchange for or in lieu of, this Security
shall be a Global Security subject to the
foregoing, except in such limited circumstances.
Section 205. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
As Trustee
By
Authorized Officer
Section 206. Form of Conversion Notice.
To USF&G Corporation
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion
hereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of the Company in
accordance with the terms of the Indenture referred to in this
Security, and directs that the shares issuable and deliverable
upon the conversion, together with any check in payment for
fractional shares and any Securities representing any
unconverted principal amount hereof, be issued and delivered to
the registered holder hereof unless a different name has been
indicated below. If this Notice is being delivered on a date
after the close of business on a Regular Record Date and prior
to the opening of business on the related Interest Payment Date
(unless this Security or the portion thereof being converted
has been called for redemption on a Redemption Date within such
period), this Notice is accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest
payable on such Interest Payment Date of the principal of this
Security to be converted. If shares are to be issued in the
name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect hereto. Any
amount required to be paid by the undersigned on account of
interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of
$1,000, if less than all):
$____________
Dated
Signature
Signature(s) must be guaranteed
by a commercial bank or trust
company or a member firm of a
national stock exchange if shares
of Common Stock are to be
delivered, or Securities to be
issued, other than to and in the
name of the registered holder.
Signature Guarantee
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered
holder.
Social Security or other Taxpayer
(Name) Identifying Number
(Address)
Please print Name and
Address (including zip
code number)
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution or
established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the
series (which shall distinguish the Securities
of the series from Securities of any other
series);
(2) any limit upon the aggregate principal
amount of the Securities of the series which may
be authenticated and delivered under this
Indenture (except for Securities authenticated
and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections
304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are
deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a
Security of the series shall be payable, if
other than the Person in whose name that
Security (or one or more Predecessor Securities)
is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the
principal of the Securities of the series is
payable;
(5) the rate or rates at which the
Securities of the series shall bear interest, if
any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall be
determined, the date or dates from which such
interest shall accrue, the Interest Payment
Dates on which any such interest shall be
payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) whether the Securities of the series
would be secured pursuant to Section 901(6);
(7) the place or places where the
principal of and any premium and interest on
Securities of the series shall be payable;
(8) the period or periods within which,
the price or prices at which (including premium,
if any) and the terms and conditions upon which
Securities of the series may be redeemed, in
whole or in part, at the option of the Company
pursuant to a sinking fund or otherwise;
(9) the obligation, if any, of the Company
to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof
and the period or periods within which, the
price or prices at which and the terms and
conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(10) the terms of any right to convert
Securities of the series into shares of Common
Stock of the Company or other securities or
property;
(11) if other than denominations of $1,000
and any integral multiple thereof, the
denominations in which Securities of the series
shall be issuable;
(12) the currency or currencies, including
composite currencies, or currency units in which
payment of the principal of and any premium and
interest on any Securities of the series shall
be payable if other than the currency of the
United States of America and the manner of
determining the equivalent thereof in the
currency of the United States of America for
purposes of the definition of "Outstanding" in
Section 101;
(13) if the amount of payments of principal
of or any premium or interest on any Securities
of the series may be determined with reference
to one or more indices, the manner in which such
amounts shall be determined;
(14) if the principal of or any premium or
interest on any Securities of the series is to
be payable, at the election of the Company or a
Holder thereof, in one or more currencies,
including composite currencies, or currency
units other than that or those in which the
Securities are stated to be payable, the
currency, currencies, including composite
currencies, or currency units in which payment
of the principal of and any premium and interest
on Securities of such series as to which such
election is made shall be payable, and the
periods within which and the terms and
conditions upon which such election is to be
made;
(15) if other than the principal amount
thereof, the portion of the principal amount of
Securities of the series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or provable
under any applicable federal or state bankruptcy
or similar law pursuant to Section 503;
(16) if and as applicable, that the
Securities of the series shall be issuable in
whole or in part in the form of one or more
Global Securities and, in such case, the
Depositary or Depositaries for such Global
Security or Global Securities and any
circumstance other than those set forth in
Section 305 in which any such Global Security
may be transferred to, and registered and
exchanged for Securities registered in the name
of, a Person other than the Depositary for such
Global Security or a nominee thereof and in
which any such transfer may be registered;
(17) any other event or events of default
applicable with respect to the Securities of the
series in addition to those provided in Section
501(1) through (7);
(18) any other covenant or warranty
included for the benefit of Securities of the
series in addition to (and not inconsistent
with) those included in this Indenture for the
benefit of Securities of all series, or any
other covenant or warranty included for the
benefit of Securities of the series in lieu of
any covenant or warranty included in this
Indenture for the benefit of Securities of all
series, or any provision that any covenant or
warranty included in this Indenture for the
benefit of Securities of all series shall not be
for the benefit of Securities of the series, or
any combination of such covenants, warranties or
provisions;
(19) any restriction or condition on the
transferability of the Securities of the series;
(20) any authenticating or paying agents,
registrars, conversion agents or any other
agents with respect to the Securities of the
series; and
(21) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of such
action shall be delivered to the Trustee.
Section 302. Denominations.
The Securities of each series shall be issuable in
registered form without coupons in such denominations as shall
be specified as contemplated by Section 301. In the absence of
any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company
by its Chairman, its President, any Executive Vice President,
any Vice President, its Treasurer or Assistant Treasurer, under
its corporate seal reproduced thereon attested by its Corporate
Secretary or one of its Assistant Corporate Secretaries. The
signature of any of these officers on the Securities may be
manual or facsimile.
The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Securities bearing the manual or
facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the
date of such Securities. Minor typographical and other minor
errors in the text of any Security or minor defects in the seal
or facsimile signature on any Security shall not affect the
validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant
to one or more Board Resolutions as permitted by Sections 201
and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form of such Securities has
been established by or pursuant to a Board
Resolution as permitted by Section 201, that
such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have
been established by or pursuant to a Board
Resolution as permitted by Section 301, that
such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when
authenticated and delivered by the Trustee and
issued by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, will constitute valid and legally
binding obligations of the Company enforceable
in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, rehabilitation and
similar laws of general applicability relating to
or affecting creditors' rights generally or the rights of
creditors of insurance companies or insurance
holding companies generally and to general
equity principles.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if
the Trustee, being advised by counsel, determines that such
action may not lawfully be taken or if the Trustee in good
faith by its board of directors, executive committee, or a
trust committee of directors or responsible officers of the
Trustee shall determine that such action would expose the
Trustee to personal liability to existing Holders of
Securities.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to
deliver the Board Resolution otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of
such series to be issued.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their
execution of such Securities. Every temporary security shall be executed
by the Company and authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with like effect, as the
definitive Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of
such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one
or more definitive Securities of the same series, of any
authorized denominations and of a like aggregate principal
amount and tenor. Until so exchanged the temporary Securities
of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such
series and tenor.
Section 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in
such office and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred
to as the "Security Register") in which, subject to such
reasonable regulations as it or the Trustee may prescribe, the
Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any
Security of any series at the office or agency in a Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive and bearing
numbers not contemporaneously outstanding.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer, exchange, redemption or payment shall (if so
required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company
or the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906
or 1107 not involving any transfer.
Neither the Company nor the Trustee shall be required (i)
to issue, register the transfer of or exchange Securities of
any series during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption
of Securities of that series selected for redemption under
Section 1103 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in
part.
Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or
exchanged for Securities registered in the name of, any Person
other than the Depositary for such Global Security or any
nominee thereof, and no such transfer may be registered, unless
(1) such Depositary (A) notifies the Company and the Trustee
that it is unwilling or unable to continue as Depositary for
such Global Security or (B) ceases to be a clearing agency
registered under the Exchange Act, (2) the Company executes and
delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable, (3)
there shall have occurred and be continuing an Event of Default
with respect to the Securities evidenced by such Global
Security or (4) there shall exist such other circumstances, if
any, as have been specified for this purpose as contemplated by
Section 301. Notwithstanding any other provision in this
Indenture, a Global Security to which the restriction set forth
in the preceding sentence shall have ceased to apply may be
transferred only to, and may be registered and exchanged for
Securities registered only in the name or names of, such Person
or Persons as the Depositary for such Global Security shall
have directed and no transfer thereof other than such a
transfer may be registered.
Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of,
a Global Security to which the restriction set forth in the
first sentence of the preceding paragraph shall apply, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If there shall be delivered to the Company and the Trustee
(i) a mutilated Security, or (ii) evidence to their
satisfaction of the destruction, loss or theft of any Security
and in either case such security or indemnity as may be
required by either of them to save each of them and any agent
of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company or the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of (but shall be subject to all the
limitaions of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section
301 with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment
of any Defaulted Interest to the Persons in
whose names the Securities of such series (or
their respective Predecessor Securities) are
registered at the close of business on a Special
Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest
proposed to be paid on each Security of such
series and the date of the proposed payment, and
at the same time the Company shall deposit with
the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed
payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the
date of the proposed payment and not less than
15 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee
shall promptly notify the Company of such
Special Record Date and, in the name and at the
expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each
Holder of Securities of such series at its
address as it appears in the Security Register,
not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record
Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or
their respective Predecessor Securities) are
registered at the close of business on such
Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any
Defaulted Interest on the Securities of any
series in any other lawful manner not
inconsistent with the requirements of any
securities exchange on which such Securities may
be listed, and upon such notice as may be
required by such exchange, if, after notice
given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Subject to the provisions of Section 1202, in the case of
any Security which is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date
(other than any Security the principal of (or premium, if any,
on) which shall become due and payable, whether at a Stated
Maturity or by declaration of acceleration, call for
redemption, or otherwise, prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding
such conversion and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose
name that Security (or any one or more Predecessor Securities)
is registered at the close of business on such Regular Record
Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security
which is converted, interest whose Stated Maturity is after
the date of conversion of such Security shall not be payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject
to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund or analogous payment or for conversion shall, if
surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to
the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall
be disposed of as directed by a Company Order. Acquisition by
the Company of any Security shall not operate as a redemption
or satisfaction of the indebtedness represented by such
Security unless and until the same is delivered to the Trustee
for cancellation.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section
301 for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities
of a series herein expressly provided for) with respect to
Securities of any series, and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to a
series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i)
Securities which have been destroyed, lost or
stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities of
such series for whose payment money has
theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003)
have been delivered to the Trustee for
cancellation; or
(B) all such Securities of such series not
theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements reasonably satisfactory to the
Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of
(i), (ii) or (iii) above, has irrevocably deposited or
caused to be deposited with the Trustee in trust
for the purpose (A) money (either in United
States dollars or such other currency or
currency unit in which the Securities of any
series may be payable) in an amount, or (B) U.S.
Government Obligations (or Foreign Government
Obligations if the Securities are denominated in
a foreign currency or currencies) that through
the scheduled payment of principal and interest
in respect thereof in accordance with their
terms will provide, not later than one day
before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient
to pay and discharge the entire indebtedness on
such Securities of such series not theretofore
delivered to the Trustee for cancellation, for
principal of (and premium, if any) and interest
to the date of such deposit (in the case of
Securities of such series which have become due
and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent
herein provided for relating to the satisfaction
and discharge of this Indenture with respect to
such series have been complied with.
In the event there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute
an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Securities
of a particular series as to which it is Trustee and if the
other conditions thereto are met. In the event that there are
two or more Trustees hereunder, then the effectiveness of any
such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to a particular series, the obligations
of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under
Section 614 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive until there
are no Securities Outstanding with respect to a particular
series and the obligations of the Company and the Trustee with
respect to all other series of Securities shall survive.
Section 402. Application of Trust Fund.
Subject to provisions of the last paragraph of Section
1003, all amounts deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest for
whose payment such funds have been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default" whenever used with respect to
Securities of a series means any one of the following events
and such other events as may be established with respect to the
Securities of such series as contemplated by Section 301
hereof:
(1) Default in the payment of any instalment of
interest upon any of the Securities of such
series as and when the same shall become due and
payable, and continuance of such default for a
period of 30 days; or
(2) Default in the payment of the principal of
or premium, if any, on any of the Securities of
such series as and when the same shall become
due and payable either at maturity, upon
redemption, by declaration or otherwise; or
(3) Default in the making of any sinking fund
payment, whether mandatory or optional, as and
when the same shall become due and payable by
the terms of the Securities of such series; or
(4) Failure on the part of the Company duly to
observe or perform in any material respect any
other of the covenants or agreements on the part
of the Company contained in this Indenture or in the Securities
(other than those set forth exclusively in the
terms of any other particular series of
Securities established as contemplated by this
Indenture for the benefit of such other series)
and written notice of such failure, stating that
such notice is a "Notice of Default" hereunder,
and requiring the Company to remedy the same,
shall have been given by registered or certified
mail, return receipt requested, to the Company
by the Trustee, or to the Company and the
Trustee by the holders of at least 25% in
aggregate principal amount of the Outstanding
Securities of that series, and such failure
shall have continued unremedied for a period of
90 days after the date of the Company's receipt
of such Notice of Default; or
(5) An event of default, as defined in any
indenture or instrument evidencing or under
which the Company or any Principal Insurance
Subsidiary shall have outstanding indebtedness
for borrowed money in a principal amount in
excess of $50,000,000, shall happen and be
continuing and such indebtedness shall have been
accelerated so that the same shall be or become
due and payable prior to the date on which the
same would otherwise have become due and payable
or the Company or any Principal Insurance
Subsidiary shall default in the payment at final
maturity of outstanding indebtedness for
borrowed money in a principal amount in excess
of $50,000,000, and such acceleration or default
at maturity shall not be waived, rescinded or
annulled within 30 days after written notice
thereof, stating that such notice is a "Notice
of Default" hereunder, shall have been given to
the Company by the Trustee (if such event be
known to it), or to the Company and the Trustee
by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities
of that series; provided, however, that if such
acceleration under such indenture or instrument
or default at maturity shall be remedied or
cured by the Company or Principal Insurance
Subsidiary, or waived, rescinded or annulled by
the requisite holders of such
indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured
or waived without further action upon the part
of either the Trustee or any of the Holders; and
provided further, that, subject to the
provisions of Sections 601 and 602, the Trustee
shall not be charged with knowledge of any such
default unless written notice thereof shall have
been given to the Trustee by the Company, by the
holder of any such indebtedness or an agent of
the holder of any such indebtedness, by the
trustee then acting under any such indenture or
other instrument under which such default shall
have occurred, or by the holders of at least 25%
in aggregate principal amount of the Outstanding
Securities of that series; or
(6) A decree or order by a court having
jurisdiction in the premises shall have been
entered adjudging the Company or any Principal Insurance
Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
adjustment or composition of the Company or any Principal
Insurance Subsidiary under any applicable Federal or State
bankruptcy or similar law, and such decree or order shall have
continued undischarged and unstayed for a period
of 90 days; or a decree or order of a court
having jurisdiction in the premises for the
appointment of a receiver, liquidator, trustee,
assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or any Principal
Insurance Subsidiary or of all or substantially all of its
property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or
order shall have continued undischarged and
unstayed for a period of 90 days; or
(7) The Company or any Principal Insurance
Subsidiary shall institute proceedings to
be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer
or consent seeking reorganization, arrangement,
adjustment or composition under any applicable
Federal or State bankruptcy or similar law, or
shall consent to the filing of any such
petition, or shall consent to the appointment of
a receiver, liquidator, trustee, assignee,
sequestrator or similar official in bankruptcy
or insolvency of the Company or any Principal Insurance
Subsidiary or of all or substantially all of its
property, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its
debts generally as they become due and its
willingness to be adjudged a bankrupt, or
corporate action shall be taken by the Company or any Principal Insurance
Subsidiary in furtherance of any of the aforesaid purposes.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of
the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become
immediately due and payable; provided, however, that if an Event of Default
specified in Section 501(6) or (7) occurs and is continuing, such principal
amount of all such Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the
Trustee or any Holders; provided further, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest
on any Security or in the payment of any sinking fund payment, the Trustee
shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of such
Securities.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the
Company and the Trustee, may waive all defaults and may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities
of that series,
(B) the principal of (and premium, if any,
on) any Securities of that series which
have become due otherwise than by such
declaration of acceleration and any
interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel due the Trustee under Section 607;
and
(2) all Events of Default with respect to
Securities of that series, other than the
non-payment of the principal of and interest, if
any, on the Securities of that series which have
become due solely by such declaration of
acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any
interest on any Security when such interest
becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, except such costs and expenses as are a result of
negligence or bad faith on the part of the Trustee. Until such
demand is made by the Trustee, the Company may pay the
principal of and premium, if any, and interest, if any, on the
Securities of any series to the registered holders, whether or
not the Securities of such series are overdue.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order
to have claims of the Holders and the Trustee allowed in any
such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel due the Trustee under Section 607.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf
of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel due the Trustee under
Section 607, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof
if fully paid:
FIRST: To the payment of all amounts due
the Trustee under Section 607;
SECOND: To the payment of the amounts
then due and unpaid for principal of and any
premium and interest on the Securities in
respect of which or for the benefit of which
such money has been collected, ratably, without
preference or priority of any kind, according to
the amounts due and payable on such Securities
for principal and any premium and interest,
respectively; and
THIRD: To the payment of the remainder,
if any, to the Company or any other Person
lawfully entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given
written notice to the Trustee of a continuing
Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities
of that series shall have made written request
to the Trustee to institute proceedings in
respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to
the Trustee indemnity reasonably satisfactory in
form and substance to the Trustee against the
costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and
any premium and (subject to Section 307) any interest on such
Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption
Date) and to convert such Securities in accordance with Article
Twelve and to institute suit for the enforcement of any such
payment or such right of conversion, and such rights shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to Section 507, every right and
remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in
conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee need not take any action
which might involve it in personal liability or
be unduly prejudicial to the Holders of such
series not joining therein.
Upon receipt by the Trustee of any such direction with
respect to Securities of any series, a record date shall be set
for determining the Holders of Outstanding Securities of such
series entitled to join in such direction, which record date
shall be the close of business on the day the Trustee receives
such direction. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agents),
and only such Persons, shall be entitled to join in such
direction, whether or not such Holders remain Holders after
such record date; provided that, unless such direction shall
have become effective by virtue of Holders of at least a
majority in principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such
record date, such direction shall automatically and without any
action by any Person be cancelled and of no further effect.
Nothing in this paragraph shall prevent a Holder (or a duly
appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a direction contrary to or
different from, or, after the expiration of such period,
identical to, a direction that has been cancelled pursuant to
the proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to this
paragraph.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series
waive any past default hereunder with respect to such series
and its consequences, except a default
(1) in the payment of the principal of or
any premium or interest on any Security of such
series, or
(2) in respect of a covenant or provision
hereof which under Article Nine cannot be
modified or amended without the consent of the
Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or
to make such an assessment in any suit instituted by the
Company.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities
of any series, the Trustee shall give the Holders of Securities
of such series notice of such default as and to the extent
provided by the Trust Indenture Act; provided, however, that in
the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other
paper or document believed by it to be genuine
and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the
Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to
taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel
and the written advice of such counsel or any
Opinion of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Indenture at the
request or direction of any of the Holders
pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or
indemnity reasonably satisfactory in form and
substance to the Trustee against the costs,
expenses and liabilities which might be incurred
by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters
stated in any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation,
it shall upon reasonable notice to the Company
be entitled to examine the books, records and
premises of the Company, personally or by agent
or attorney at a time and place reasonably
acceptable to the Company; and
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through
agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any agent or attorney appointed with
due care by it hereunder.
Except as otherwise required by the Trust Indenture Act, the
Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed
with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to
time reasonable compensation for all services
rendered by it hereunder (which compensation
shall not be limited by any provision of law in
regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its
written request for all reasonable expenses,
disbursements and advances incurred or made by
the Trustee in accordance with any provision of
this Indenture (including the reasonable
compensation, and reasonable expenses and
disbursements of its agents and outside
counsel), except any such expense, disbursement
or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to
hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith
on its part, arising out of or in connection
with the acceptance or administration of the
trust or trusts hereunder, including the
reasonable costs and expenses of defending
itself against any claim or liability in
connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior
to the Securities upon all property and funds held or collected
by the Trustee, in its capacity as Trustee (but not in any other capacity),
except funds held in trust for the payment of principal of (or premium, if
any) or interest on particular Secutities or any coupons. The provisions
of this Section shall survive the termination of this Identure.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6)
or (7), the expenses (including reasonable charges and expenses
of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other
similar law.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions
of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000 or is a subsidiary of a
corporation which shall be a Person that has a combined capital
and surplus of at least $50,000,000 and which unconditionally
guarantees the obligations of the Trustee hereunder. If such
Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 611.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 608 after written request therefor by
the Company or by any Holder who has been a bona
fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible
under Section 609 and shall fail to resign after
written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its
property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause, with respect to the Securities of one
or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any Series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any Series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months
may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim,
if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of such series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be
necessary or desirable to transfer the rights, powers, trust
and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustee co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment
of such successor Trustee relates, subject nevertheless to its
claim, if any, provided for in Section 607.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of
the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may with the consent of the Company appoint an
Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued
upon original issue and upon exchange, registration of
transfer, partial conversion or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by
the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee or the Company may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to
such Authenticating Agent and to the Company or the Trustee, as
the case may be. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent
will serve, as their names and addresses appear in the Security
Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services
under this Section.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
SIGNET TRUST COMPANY,
As Trustee
By:
,
As Authenticating
Agent
By:
,
Authorized
Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not later than 10 days
after each Regular Record Date in each year, a
list for each series of Securities, in such form
as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities
of such series as of the preceding Regular
Record Date, and
(b) at such other times as the Trustee may
request in writing, within 30 days after the
receipt by the Company of any such request, a
list of similar form and content as of a date
not more than 15 days prior to the time such
list is furnished; excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. To the
extent that any such report is required by the Trust Indenture
Act with respect to any 12 month period, such report shall
cover the 12 month period ending May 15 and shall be
transmitted by the next succeeding July 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may
be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that
any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR SALE OR ASSETS
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer, lease or sell its properties and assets as, or
substantially as, an entirety to any Person, and the Company
shall not permit any Person to consolidate with or merge into
the Company, unless:
(1) in case the Company shall consolidate
with or merge into another Person or sell its
properties and assets as, or substantially as,
an entirety to any Person, the Person formed by
such consolidation or into which the Company is
merged or the Person which acquires by conveyance, transfer,
lease or sale the properties and assets of the Company as, or
substantially as, an entirety shall be a
corporation, partnership or trust, shall be
organized and validly existing under the laws of
the United States of America, any State thereof
or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the
Company under the Securities, including without limitation,
the due and punctual payment of the principal of and any
premium and interest on all the Securities and
the performance or observance of every covenant
of this Indenture on the part of the Company to
be performed or observed and the conversion
rights, if any, shall be provided for in
accordance with Article Twelve, by supplemental
indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee, by the
Person (if other than the Company) formed by
such consolidation or into which the Company
shall have been merged or by the corporation
which shall have acquired or leased the Company's assets;
(2) immediately after giving effect to
such transaction, no Event of Default shall have
happened and be continuing; and
(3) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation,
merger, conveyance, transfer, lease or sale and, if a
supplemental indenture is required in connection
with such transaction, such supplemental
indenture comply with this Article and that all
conditions precedent herein provided for
relating to such transaction have been complied
with.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of United States Fidelity and
Guaranty Company (other than to the Company or another Subsidiary), which,
if such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any sale of the
properties and assets of the Company as, or substantially as,
an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company
is merged or to which such sale is made shall succeed to, and
be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and
thereafter, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another
Person to the Company and the assumption by any
such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company
for the benefit of the Holders of all or any
series of Securities (and if such covenants are
to be for the benefit of less than all series of
Securities, stating that such covenants are
expressly being included solely for the benefit
of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of
Default; or
(4) to add to or change any of the
provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the
issuance of Securities in bearer form,
registrable or not registrable as to principal,
and with or without interest coupons, or to
permit or facilitate the issuance of Securities
in uncertificated form, or to permit or
facilitate the issuance of Original Issue
Discount Securities; or
(5) to add to, change or eliminate any of
the provisions of this Indenture in respect of
one or more series of Securities, provided that
any such addition, change or elimination (i)
shall neither (A) apply to any Security of any
series created prior to the execution of such
supplemental indenture and entitled to the
benefit of such provision nor (B) modify the
rights of the Holder of any such Security with
respect to such provision or (ii) shall become
effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to
the requirements of Section 1005, or to
otherwise secure the Securities of any series;
or
(7) to establish the form or terms of
Securities of any series as permitted by
Sections 201 and 301; or
(8) to evidence and provide for the
acceptance of appointment hereunder by a
successor Trustee with respect to the Securities
of one or more series and to add to or change
any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the
administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or
supplement any provision herein which may be
inconsistent with any other provision herein, or
to make any other provisions with respect to
matters or questions arising under this
Indenture, provided that such action pursuant to
this clause (9) shall not adversely affect the
interests of the Holders of Securities of any
series in any material respect; or
(10) to make provision with respect to the
conversion rights of Holders pursuant to the
requirements of Article Twelve, including
providing for the conversion of the securities
into any security (other than the Common Stock
of the Company) or property of the Company; or
(11) to conform to any mandatory
provisions of law.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a
majority of principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the
principal of, or any instalment of principal of
or interest on, any Security, or reduce the
principal amount thereof or the rate of interest
thereon (including any change in the Floating or
Adjustable Rate Provision pursuant to which such
rate is determined that would reduce such rate
for any period) or any premium payable upon the
redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security
that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant
to Section 502, or change any Place of Payment
where, or the coin or currency in which, any
Security or any premium or interest thereon is
payable, or impair the right to institute suit
for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any
series, the consent of whose Holders is required
for any such supplemental indenture, or the
consent of whose Holders is required for any
waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and
their consequences) provided for in this
Indenture, or
(3) if applicable, make any change that
adversely affects the right to convert any
security to which the provisions of Article
Twelve are applicable or, except as provided in
this Indenture, decrease the conversion rate or
increase the conversion price of any such
security, or
(4) modify any of the provisions of this
Section, Section 513 or Section 907, except to
increase any such percentage or to provide that
certain other provisions of this Indenture
cannot be modified or waived without the consent
of the Holder of each Outstanding Security
affected thereby, provided, however, that this
clause shall not be deemed to require the
consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant
changes in this Section and Section 907, or the
deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights
of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust
Indenture Act.
Section 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 907. Waiver of Compliance by Holders.
Anything in this Indenture to the contrary
notwithstanding, any of the acts which the Company is required
to do, or is prohibited from doing, by any of the provisions of
this Indenture may, to the extent that such provisions might be
changed or eliminated by a supplemental indenture pursuant to
Section 902 upon consent of holders of not less than a majority
in aggregate principal amount of the then Outstanding
Securities of the series affected, be omitted or done by the
Company, if there is obtained the prior consent or waiver of
the holders of at least a majority in aggregate principal
amount of the then Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or
cause to be paid the principal of and any premium and interest
on the Securities of that series in accordance with the terms
of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
So long as any Securities are Outstanding, the Company
will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities
of that series may be surrendered for registration of transfer
or exchange, where Securities of that series may be surrendered
for conversion and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or
more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or
before each due date of the principal of or any premium or
interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, prior to each due date
of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided
by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or
any other obligor upon the Securities of that series) in the
making of any payment in respect of the Securities of that
series, and upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent
for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any
other purpose, pay, or by Company Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the
principal of or any premium or interest on any Security of any
series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the
City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the
Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee within 120 days
after the end of each fiscal year of the Company ending after
the date hereof, a certificate signed by the Company's
principal executive officer, principal financial officer or
principal accounting officer stating whether or not to the best
knowledge of the signer thereof the Company is in compliance
with all terms, conditions and covenants of this Indenture
(without regard to any period of grace or requirement of notice
provided hereunder) and if the signer has obtained knowledge of
any continuing default by the Company in the performance,
observation or fulfillment of any such term, condition or
covenant, specifying each such default and the nature thereof.
Section 1005. Limitations on Liens on Common Stock of
Principal Insurance Subsidiaries.
As long as any of the Securities remains outstanding, the
Company will not, and will not permit any Principal Insurance
Subsidiary to, issue, assume, incur or guarantee any
indebtedness for borrowed money secured by a mortgage, pledge,
lien or other encumbrance, directly or indirectly, on any of
the Common Stock of a Principal Insurance Subsidiary, which
Common Stock is owned by the Company or by any Principal
Insurance Subsidiary, unless the Securities and, if the Company
so elects, any other indebtedness of the Company ranking on a
parity with the Securities, shall be secured equally and
ratably with, or prior to, such secured indebtedness for
borrowed money so long as it is outstanding.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a
specified tenor are to be redeemed), the particular Securities
to be redeemed shall be selected not more than 45 days prior to
the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination
for Securities of that series. If less than all of the
Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in
accordance with the preceding sentence.
If any Security selected for partial redemption is
converted in part before termination of the conversion right
with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to
be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.
The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of
any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to
be redeemed, at its address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding
Securities of any series are to be redeemed, the
identification (and, in the case of partial
redemption of any Securities, the principal
amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the
Redemption Price will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(5) if applicable, the conversion price,
and that the date on which the right to convert
the principal of the Securities or the portions
thereof to be redeemed will terminate will be
the Redemption Date and the place or places
where such Securities may be surrendered for
conversion,
(6) the place or places where such
Securities are to be surrendered for payment of
the Redemption Price, and
(7) that the redemption is for a sinking
fund, if such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date, other than
any Securities called for redemption on that date which have
been converted prior to the date of such deposit.
If any Security or portion thereof called for redemption
is converted, any money deposited with the Trustee or with any
Paying Agent or so segregated and held in trust for the
redemption of such Security or portion thereof shall (subject
to any right of the Holder of such Security or any Predecessor
Security to receive interest as provided in the last paragraph
of Section 307) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such
trust.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any
premium shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
CONVERSION OF SECURITIES
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into shares of
Common Stock of the Company, and the issuance of such shares of
Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 301 for the
Securities of such series.
Section 1202. Exercise of Conversion Privilege.
In order to exercise a conversion privilege, the Holder of
a Security of a series with such a privilege shall surrender
such Security to the Company at the office or agency maintained
for that purpose pursuant to Section 1002, accompanied by
written notice to the Company that the Holder elects to convert
such Security or a specified portion thereof. Such notice
shall also state, if different from the name and address of
such Holder, the name or names (with address) in which the
certificate or certificates for shares of Common Stock which
shall be issuable on such conversion shall be issued.
Securities surrendered for conversion shall (if so required by
the Company or the Trustee) be duly endorsed by or accompanied
by instruments of transfer in forms satisfactory to the Company
and the Trustee duly executed by the registered Holder or its
attorney duly authorized in writing; and Securities so
surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business
on the next succeeding Interest Payment Date (excluding
Securities or portions thereof called for redemption during
such period) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount
of such Security then being converted, and such interest shall
be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of
Section 307 relating to the payment of Defaulted Interest by
the Company. As promptly as practicable after the receipt of
such notice and of any payment required pursuant to a Board
Resolution and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto
setting forth the terms of such series of Security, and the
surrender of such Security in accordance with such reasonable
regulations as the Company may prescribe, the Company shall
issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written
order, a certificate or certificates for the number of full
shares of Common Stock issuable upon the conversion of such
Security (or specified portion thereof), in accordance with the
provisions of such Board Resolution, Officers' Certificate or
supplemental indenture, and cash as provided therein in respect
of any fractional share of such Common Stock otherwise issuable
upon such conversion. Such conversion shall be deemed to have
been effected immediately prior to the close of business on the
date on which such notice and such payment, if required, shall
have been received in proper order for conversion by the
Company and such Security shall have been surrendered as
aforesaid (unless such Holder shall have so surrendered such
Security and shall have instructed the Company to effect the
conversion on a particular date following such surrender and
such Holder shall be entitled to convert such Security on such
date, in which case such conversion shall be deemed to be
effected immediately prior to the close of business on such
date) and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or
persons in whose name or names any certificate or certificates
for shares of Common Stock of the Company shall be issuable
upon such conversion shall be deemed to have become the Holder
or Holders of record of the shares represented thereby. Except
as set forth above and subject to the final paragraph of
Section 307, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities
surrendered for conversion or on account of any dividends on
the Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part
only, upon such conversion the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of
the Holder thereof, at the expense of the Company, a new
Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the
unconverted portion of such Security.
Section 1203. No Fractional Shares.
No fractional share of Common Stock of the Company shall
be issued upon conversions of Securities of any series. If
more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which
shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so
surrendered. If, except for the provisions of this Section
1203, any Holder of a Security or Securities would be entitled
to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified
portions thereof, the Company shall pay to such Holder an
amount in cash equal to the current market value of such
fractional share computed, (i) if such Common Stock is listed
or admitted to unlisted trading privileges on a national
securities exchange, on the basis of the last reported sale
price regular way on such exchange on the last trading day
prior to the date of conversion upon which such a sale shall
have been effected, or (ii) if such Common Stock is not at the
time so listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the average of
the bid and asked prices of such Common Stock in the
over-the-counter market, on the last trading day prior to the
date of conversion, as reported by the National Association of
Securities Dealers, Inc. Automated Quotations System, or if not
so available, the fair market price as determined by the Board
of Directors. For purposes of this Section, "trading day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on
the New York Stock Exchange, or if the Common Stock is not
traded on the New York Stock Exchange, on the principal
exchange or market on which the Common Stock is traded or
quoted.
Section 1204. Adjustment of Conversion Price.
The conversion price of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted
for any stock dividends, stock splits, reclassification,
combinations or similar transactions in accordance with the
terms of the supplemental indenture or Board Resolutions
setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company
shall compute the adjusted conversion price in accordance with
terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers' Certificate setting
forth the adjusted conversion price and showing in reasonable
detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant
to Section 1002 and, if different, with the Trustee. The
Company shall forthwith cause a notice setting forth the
adjusted conversion price to be mailed, first class postage
prepaid, to each Holder of Securities of such series at its
address appearing on the Security Register and to any
conversion agent other than the Trustee.
Section 1205. Notice of Certain Corporate Actions.
In Case:
(a) the Company shall declare a dividend
(or any other distribution) on its Common Stock
(other than dividends or distributions which will not
require an adjustment of the conversion price of
Securities of any series pursuant to Section 1204); or
(b) the Company shall authorize the
granting to the holders of its Common Stock of
rights, options or warrants to subscribe for or
purchase any shares of capital stock of any
class or of any other rights (other than any
such grant for which approval of any
shareholders of the Company is required or which
will not require an adjustment of the conversion
price of Securities of any series pursuant to Section 1204); or
(c) of any reclassification of the Common
Stock of the Company (other than a subdivision
or combination of its outstanding shares of
Common Stock, or of any consolidation, merger or
share exchange to which the Company is a party
and for which approval of any shareholders of
the Company is required or which will not require
an adjustment of the conversion price of Securities
of any series pursuant to Section 1204 ), or of the
sale of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary
dissolution, liquidation or winding up of the
Company;
then the Company shall cause to be filed with the Trustee, and
shall cause to be mailed to all Holders at their last addresses
as they shall appear in the Securities Register, at least 20
days (or 10 days in any case specified in clause (a) or (b)
above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is
to be taken for the purpose of such dividend, distribution,
rights, options or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights,
options or warrants are to be determined, or (ii) the date on
which such reclassification, consolidation, merger, share
exchange, sale, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up. If at any time the
Trustee shall not be the conversion agent, a copy of such
notice shall also forthwith be filed by the Company with the
conversion agent.
Section 1206. Reservation of Shares of Common Stock.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued
Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock of the
Company then issuable upon the conversion of all outstanding
Securities of any series that have conversion rights.
Section 1207. Payment of Certain Taxes Upon Conversion.
The Company will pay any and all taxes that may be payable
in respect of the issue or delivery of shares of its Common
Stock on conversion of Securities pursuant hereto. The Company
shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and
delivery of shares of its Common Stock in a name other than
that of the Holder of the Security or Securities to be
converted, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the
Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
Section 1208. Nonassessability.
The Company covenants that all shares of its Common Stock
which may be issued upon conversion of Securities will upon
issue in accordance with the terms hereof be duly and validly
issued and fully paid and nonassessable.
Section 1209. Effect of Consolidation or Merger on Conversion
Privilege.
In case of any consolidation of the Company with, or
merger of the Company into or with any other Person, or in the
case of a statutory share exchange to which the Company is a
party or in case of any sale or conveyance of all or substantially all of
the properties or assets of the Company (including cash), the Company or
the Person formed by such consolidation or the Person into which the
Company shall have been merged or the Person which shall have acquired such
assets, or the surviving entity in such share exchange, as the
case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each
Security then outstanding of any series that is convertible
into Common Stock of the Company shall have the right, which
right shall be the exclusive conversion right thereafter
available to said Holder (until the expiration of the
conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other securities
or property (including cash) receivable upon such
consolidation, merger, share exchange, conveyance or sale by a holder of
the number of shares of Common Stock of the Company into which
such Security might have been converted immediately prior to
such consolidation, merger, share exchange, conveyance or sale, subject to
compliance with the other provisions of this Indenture, such
Security and such supplemental indenture. Such supplemental
indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments
provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidations,
mergers, share exchanges, conveyances or sales. It is expressly agreed and
understood that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation, share
exchange, conveyance or sale, holders of outstanding shares of Common Stock
of the Company do not receive shares of common stock of the surviving
corporation but receive other securities, cash or other property or any
combination thereof, Holders of Securities shall not have the
right to thereafter convert their Securities into common stock
of the surviving corporation or the corporation which shall
have acquired such assets, but rather, shall have the right
upon such conversion to receive the other securities, cash or
other property receivable by a holder of the number of shares
of Common Stock of the Company into which the Securities held
by such holder might have been converted immediately prior to
such consolidation, merger, share exchange, conveyance or sale, all as more
fully provided in the first sentence of this Section 1209.
Anything in this Section 1209 to the contrary notwithstanding,
the provisions of this Section 1209 shall not apply to a merger
or consolidation of another corporation with or into the
Company or any share exchange to which the Company is a party
pursuant to which both of the following conditions are
applicable: (i) the Company is the surviving or successor
corporation and (ii) the outstanding shares of Common Stock of
the Company are not changed or converted into any other
securities or property (including cash) or changed in number or
character or reclassified pursuant to the terms of such merger,
consolidation or share exchange.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly
be convertible after any such consolidation, merger, share
exchange, conveyance or sale, or as to the appropriate adjustments of the
conversion prices applicable with respect thereto, the Trustee
shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with
respect thereto; and, in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely thereon, and
shall not be responsible or accountable to any Holder of
Securities for any provision in conformity therewith or
approved by such independent certified accountant which may be
contained in said supplemental indenture.
Section 1210. Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent shall at any
time be under any duty or responsibility to any Holder of
Securities of any series that is convertible into Common Stock
of the Company to determine whether any facts exist which may
require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or
with respect to the method employed, whether herein or in any
supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more
officers of the Company provided to be employed in making the
same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock of the Company, or of
any securities or property, which may at any time be issued or
delivered upon the conversion of any Securities and neither the
Trustee nor any conversion agent makes any representation with
respect thereto. Subject to the provisions of Section 601,
neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue, transfer
or deliver any shares of its Common Stock or stock certificates
or other securities or property upon the surrender of any
Security for the purpose of conversion or to comply with any of
the covenants of the Company contained in this Article Twelve
or in the applicable supplemental indenture, resolutions of the
Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.
Section 1211. Repayment of Certain Funds Upon Conversion.
Any funds which at any time shall have been deposited by
the Company or on its behalf with the Trustee or any other
paying agent for the purpose of paying the principal of, and
premium, if any, and interest, if any, on any of the Securities
(including funds deposited for the sinking fund referred to in
Article Three hereof) and which shall not be required for such
purposes because of the conversion of such Securities as
provided in this Article Twelve shall after such conversion be
repaid to the Company by the Trustee upon the Company's written
request.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may elect, at any time, to have either Section
1302 or Section 1303 applied to the Outstanding Securities of
any series, upon compliance with the conditions set forth below
in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in
Section 1301 to have this Section 1302 applied to the
Outstanding Securities of any series, the Company shall be
deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities
of such series and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar
as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Securities of such
series to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section,
payments in respect of the principal of and any premium and
interest on such Securities of such series when payments are
due, (2) the Company's obligations with respect to the
Securities of such series under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, including, without limitation, its
rights under Section 607 and (4) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company
may exercise its option provided in Section 1301 to have this
Section 1302 applied to the Outstanding Securities of any
series notwithstanding the prior exercise of its option
provided in Section 1301 to have Section 1303 applied to the
Outstanding Securities of such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 1301 to have this Section 1303 applied to the
outstanding Securities of any series, (1) the Company shall be
released from its obligations under Section 1005 and Section
801 and any provision of a supplemental indenture specified for
release pursuant to the terms thereof and (2) the occurrence of
any event specified in Sections 501(3), 501(4) (with respect to
Section 1005 and Section 801) and 501(5) shall be deemed not to
be or result in an Event of Default, in each case with respect
to the Outstanding Securities of such series as provided in
this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means
that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified
in the case of Section 501(4)), whether directly or indirectly
by reason of any reference elsewhere herein to any such Section
or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of
this Indenture and the Securities of such series shall be
unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
either Section 1302 or Section 1303 to the Outstanding
Securities of any series:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and
agrees to comply with the provisions of this
Article Thirteen applicable to it) as trust
funds in trust for the purpose of making the
following payments, specifically pledged as
security for, and dedicated solely to, the
benefit of the Holders of Outstanding Securities
of such series, (A) in the case of Securities of
such series denominated in U.S. dollars, (i)
money in an amount, or (ii) U.S. Government
Obligations that through the scheduled payment
of principal and interest in respect thereof in
accordance with their terms will provide, not
later than one day before the due date of any
payment, money in an amount, or (iii) a
combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of
independent public accountants expressed in a
written certification thereof delivered to the
Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the
principal of and any premium and interest on the
Securities of such series on the respective
Stated Maturities, in accordance with the terms
of this Indenture and the Securities of such
series. As used herein, "U.S. Government
Obligation" means (x) any security that is (i) a
direct obligation of the United States of
America for the payment of which full faith and
credit of the United States of America is
pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an
agency or instrumentality for the United States
of America the payment of which is
unconditionally guaranteed as a full faith and
credit obligation by the United States of
America, which, in either case (i) or (ii), is
not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended) as
custodian with respect to any specific payment
of principal of or interest on any such U.S.
Government Obligation specified in Clause (x)
and held by such custodian for the account of
the holder of such depositary receipt, or with
respect to any specific payment of principal of
or interest on any such U.S. Government
Obligation, provided that (except as required by
law) such custodian is not authorized to make
any deduction from the amount payable to the
Holder of such depositary receipt from any
amount received by the custodian in respect of
the U.S. Government Obligation or the specific
payment of principal or interest evidenced by
such depositary receipt; or (B) in the case of
Securities of such series denominated in a
currency other than the U.S. dollar, (i) money
in such currency in an amount, or (ii) Foreign
Government Obligations that through the
scheduled payment of principal and interest in
respect thereof in accordance with their terms
will provide, not later than one day before the
due date of any payment, money in such currency
in an amount, or (iii) a combination thereof, in
each case sufficient, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any
premium and interest on the Securities of such
series on the respective Stated Maturities, in
accordance with the terms of this Indenture and
the Securities of such series. As used herein,
"Foreign Government Obligation" means (x) any
security that is (i) a direct obligation of the
government that issued such currency for the
payment of which full faith and credit of such
government is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as
an agency or instrumentality for such government
the payment of which is unconditionally
guaranteed as a full faith and credit obligation
by such government, which, in either case (i) or
(ii), is not callable or redeemable at the
option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to
any specific payment of principal of or interest
on any such Foreign Government Obligation
specified in Clause (x) and held by such
custodian for the account of the holder of such
depositary receipt, or with respect to any
specific payment of principal of or interest on
any such Foreign Government Obligation, provided
that (except as required by law) such custodian
is not authorized to make any deduction from the
amount payable to the Holder of such depositary
receipt from any amount received by the
custodian in respect of the Foreign Government
Obligation or the specific payment of principal
or interest evidenced by such depositary
receipt.
(2) In the case of an election under
Section 1302, the Company shall have delivered
to the Trustee an Opinion of Counsel stating
that the Holders of the Outstanding Securities
of such series will not recognize gain or loss
for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be
effected with respect to the Securities of such
series and will be subject to Federal income tax
on the same amount, in the same manner and at
the same times as would be the case if such
deposit, Defeasance and discharge were not to
occur.
(3) In the case of an election under
Section 1303, the Company shall have delivered
to the Trustee an Opinion of Counsel to the
effect that the Holder of the Outstanding
Securities of such series will not recognize
gain or loss for Federal income tax purposes as
result of the deposit and Covenant Defeasance to
be effected with respect to the Securities of
such series and will be subject to Federal
income tax on the same amount, in the same
manner and at the same times as would be the
case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the
Trustee an Officers' Certificate to the effect
that the Securities of such series, if then
listed on any securities exchange, will not be
delisted as a result of such deposit.
(5) No Event of Default or event that
(after notice or lapse of time or both) would
become an Event of Default shall have occurred
and be continuing at the time of such deposit
or, with regard to any Event of Default or any
such event specified in Sections 501(6) and
501(7), at any time on or prior to the 90th day
after the date of such deposit (it being
understood that this condition shall not be
deemed satisfied until after such 90th day).
(6) The Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion
of Counsel, each stating that all conditions
precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
(7) Such Defeasance or Covenant Defeasance
shall not result in the trust arising from such
deposit constituting an investment company
within the meaning of the Investment Company Act
of 1940, as amended, unless such trust shall be
qualified under such Act or exempt from
regulation thereunder.
Section 1305. Deposited Money and U.S. Government Obligations
or Foreign Government Obligations to be Held In
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations or Foreign
Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely
for purposes of this Section and Section 1306, the Trustee and
any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1304 in respect of the
Securities of any Defeasible Series shall be held in trust and
applied by the Trustee, in accordance with the provisions of
the Securities of such series and this Indenture, to the
payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations or Foreign Government Obligations
deposited pursuant to Section 1304 or the principal and
interest received in respect thereof other than any such tax,
fee or other charge that by law is for the account of the
Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or
U.S. Government Obligations or Foreign Government Obligations
held by it as provided in Section 1304 with respect to
Securities of any Defeasible Series that, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent
Defeasancseries.
series.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article Thirteen with respect to
the Securities of any series by reason of any order or judgment
of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities of such
series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Thirteen with respect to
Securities of such series until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust
pursuant to Section 1305 with respect to Securities of such
series in accordance with this Article Thirteen; provided,
however, that if the Company makes any payment of principal of
or any premium or interest on any Security of such series
following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of Securities
of such series to receive such payment from the money so held
in trust.
ARTICLE FOURTEEN
SINKING FUNDS
Section 1401. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301
for Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section
1402. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1402. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and
(2) may apply as a credit Securities of a series which have
been converted pursuant to Article Twelve or Securities of a
series which have been acquired or redeemed either at the
election of the Company pursuant to the terms of such
Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities
or otherwise, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1403. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of
the next ensuing sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1402 and will
also deliver to the Trustee any Securities to be so delivered.
Not less than 15 nor more than 45 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections
1106 and 1107.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day
and year first above written.
USF&G CORPORATION
By:
Name:
Title:
Attest::
SIGNET TRUST COMPANY
By:
Name:
Title:
Attest:
STATE OF )
) ss.:
COUNTY OF )
On the day of January, 1994, before me personally
came , to me known, who, being by me duly
sworn, did depose and say that (s)he is of
USF&G CORPORATION, one of the corporations described in and
which executed the foregoing instrument; that (s)he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that (s)he signed her/his name thereto by like authority.
Notary Public
My Commission expires:
STATE OF )
) ss.:
COUNTY OF )
On the day of January, 1994, before me personally
came , to me known, who, being by me duly
sworn, did depose and say that (s)he is
of SIGNET TRUST COMPANY, one of the corporations described in
and which executed the foregoing instrument; that (s)he knows
the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that (s)he signed her/his name thereto by like authority.
Notary Public
My Commission expires: