USF&G CORPORATION
AND
CHEMICAL BANK,
TRUSTEE
INDENTURE
Dated as of January 28, 1994
___________________
Subordinated Debt Securities
USF&G CORPORATION
Reconciliation and tie between certain Sections of
this Indenture, dated as of January 28, 1994, and
Sections 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
_________________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
(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
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 2
Commission 2
Common Stock 2
Company 3
Company Request 3
conversion price 3
Corporate Trust Office 3
Corporation 3
Covenant Defeasance 3
Debt 3
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
Hedging Obligations 4
Holder 4
Indenture 4
interest 5
Intercompany Debt 5
Interest Payment Date 5
Maturity 5
Notice of Default 5
- --------------
Note: This table of contents shall not, for any purpose, be
deemed to be part of the Indenture.
Officers' Certificate 5
Opinion of Counsel 5
Original Issue Discount Security 5
Outstanding 5
Paying Agent 6
Place of Payment 6
Predecessor Security 7
Principal Insurance Subsidiary 7
Proceeding 7
Redemption Date 7
Redemption Price 7
Regular Record Date 7
Responsible Officer 7
Securities 7
Security Register 7
Senior Debt 8
Special Record Date 8
Stated Maturity 8
Subsidiary 8
Trustee 8
Trust Indenture Act 8
U.S. Government Obligations 8
Vice President 9
Section 102. Compliance Certificates and Opinions 9
Section 103. Form of Documents Delivered to Trustee 9
Section 104. Acts of Holders; Record Dates 10
Section 105. Notices, Etc., to Trustee and Company 11
Section 106. Notice to Holders; Waiver 12
Section 107. Conflict with Trust Indenture Act 12
Section 108. Effect of Headings and Table of Contents 12
Section 109. Successors and Assigns 12
Section 110. Separability Clause 13
Section 111. Benefits of Indenture 13
Section 112. Governing Law 13
Section 113. Legal Holidays 13
Section 114. Personal Liability from Incorporators;
Stockholders 13
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally 14
Section 202. Form of Face of Security 14
Section 203. Form of Reverse of Security 16
Section 204. Form of Legend for Global Securities 21
Section 205. Form of Trustee's Certificate of Authentication 21
Section 206. Form of Conversion Notice 22
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series 23
Section 302. Denominations 26
Section 303. Execution, Authentication, Delivery and Dating 26
Section 304. Temporary Securities 28
Section 305. Registration, Registration of Transfer and
Exchange 29
Section 306. Mutilated, Destroyed, Lost and Stolen Securities 30
Section 307. Payment of Interest; Interest Rights Preserved 31
Section 308. Persons Deemed Owners 32
Section 309. Cancellation 33
Section 310. Computation of Interest 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture 33
Section 402. Application of Trust Fund 35
ARTICLE FIVE
REMEDIES
Section 501. Events of Default 35
Section 502. Acceleration of Maturity; Rescission and
Annulment 38
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 39
Section 504. Trustee May File Proofs of Claim 40
Section 505. Trustee May Enforce Claims Without Possession of
Securities 40
Section 506. Application of Money Collected 41
Section 507. Limitation on Suits 41
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest 42
Section 509. Restoration of Rights and Remedies 42
Section 510. Rights and Remedies Cumulative 42
Section 511. Delay or Omission Not Waiver 43
Section 512. Control by Holders 43
Section 513. Waiver of Past Defaults 44
Section 514. Undertaking for Costs 44
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities 44
Section 602. Notice of Defaults 45
Section 603. Certain Rights of Trustee 45
Section 604. Not Responsible for Recitals or Issuance of
Securities 46
Section 605. May Hold Securities 46
Section 606. Money Held in Trust 47
Section 607. Compensation and Reimbursement 47
Section 608. Disqualification; Conflicting Interests 48
Section 609. Corporate Trustee Required; Eligibility 48
Section 610. Resignation and Removal; Appointment of Successor 48
Section 611. Acceptance of Appointment by Successor 50
Section 612. Merger, Conversion, Consolidation or Succession
to Business 51
Section 613. Preferential Collection of ClaimsAgainst Company 51
Section 614 Appointment of Authenticating Agent 51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders 53
Section 702. Preservation of Information; Communications
to Holders 53
Section 703. Reports by Trustee 54
Section 704. Reports by Company 54
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR SALE OF ASSETS
Section 801. Company May Consolidate, Etc., Only on Certain
Terms 54
Section 802. Successor Substituted 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of
Holders 56
Section 902. Supplemental Indentures with Consent of Holders 57
Section 903. Execution of Supplemental Indentures 59
Section 904. Effect of Supplemental Indentures 59
Section 905. Conformity with Trust Indenture Act 59
Section 906. Reference in Securities to Supplemental
Indentures 59
Section 907. Waiver of Compliance by Holders 60
Section 908. Subordination Unimpaired 60
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest 60
Section 1002. Maintenance of Office or Agency 60
Section 1003. Money for Securities Payments to Be Held
in Trust 61
Section 1004. Statement by Officers as to Default 62
Section 1005. Limitations on Liens on Common Stock of
Principal Insurance Subsidiaries 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article 62
Section 1102. Election to Redeem; Notice to Trustee 63
Section 1103. Selection by Trustee of Securities to Be
Redeemed 63
Section 1104. Notice of Redemption 64
Section 1105. Deposit of Redemption Price 64
Section 1106. Securities Payable on Redemption Date 65
Section 1107. Securities Redeemed in Part 65
ARTICLE TWELVE
CONVERSION OF SECURITIES
Section 1201. Applicability of Article 66
Section 1202. Exercise of Conversion Privilege 66
Section 1203. No Fractional Shares 67
Section 1204. Adjustment of Conversion Price 68
Section 1205. Notice of Certain Corporate Actions 68
Section 1206. Reservation of Shares of Common Stock 69
Section 1207. Payment of Certain Taxes Upon Conversion 69
Section 1208. Nonassessability 69
Section 1209. Effect of Consolidation or Merger on
Conversion Privilege 70
Section 1210. Duties of Trustee Regarding Conversion 71
Section 1211. Repayment of Certain Funds Upon Conversion 71
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance 71
Section 1302. Defeasance and Discharge 72
Section 1303. Covenant Defeasance 72
Section 1304. Conditions to Defeasance or Covenant Defeasance 73
Section 1305. Deposited Money and U.S. Government Obligations
or Foreign Government Obligations to be Held
In Trust; Other Miscellaneous Provisions 76
Section 1306. Reinstatement 76
ARTICLE FOURTEEN
SINKING FUNDS
Section 1401. Applicability of Article 77
Section 1402. Satisfaction of Sinking Fund Payments
with Securities 77
Section 1403. Redemption of Securities for Sinking Fund 78
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
Section 1501. Securities Subordinate to Senior Debt 78
Section 1502. Payment Over of Proceeds Upon Dissolution, Etc. 78
Section 1503. Prior Payment to Senior Debt Upon Acceleration
of Securities 80
Section 1504. No Payment When Senior Debt in Default 80
Section 1505. Payment Permitted If No Default 81
Section 1506. Subrogation to Rights of Holders of Senior Debt 81
Section 1507. Provisions Solely to Define Relative Rights 82
Section 1508. Trustee to Effectuate Subordination 82
Section 1509. No Waiver of Subordination Provisions 82
Section 1510. Notice to Trustee 83
Section 1511. Reliance on Judicial Order or Certificate of
Liquidating Agent 84
Section 1512. Trustee Not Fiduciary For Holders of Senior
Debt 84
Section 1513. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights 84
Section 1514. Article Applicable to Paying Agents 84
Section 1515. Defeasance of This Article Fifteen 84
Section 1516. Certain Conversions Deemed Payment 85
TESTIMONIUM 86
SIGNATURES AND SEALS 86
ACKNOWLEDGEMENTS 87
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 CHEMICAL BANK , a New York
corporation, 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 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.
"Debt" means (without duplication and without
regard to any portion of principal amount that has not accrued
and to any interest component thereof (whether accrued or
imputed) that is not due and payable) with respect to any
Person, whether recourse is to all or a portion of the assets of
such Person and whether or not contingent, (i) every obligation
of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters
of credit, bankers' acceptances or similar facilities issued for
the account of such Person, (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business), (v)
every capital lease obligation of such Person, (vi) every
Hedging Obligation, (vii) every obligation of others secured by
a lien on any asset of such Person, whether or not such
obligation is assumed by such Person, (viii) every obligation of
the type referred to in clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which,
in either case, such Person has guaranteed or is responsible or
liable, directly or indirectly, as obligor or otherwise, and
(ix) any and all deferrals, renewals, extensions and refundings
of, or amendments, modifications or supplements to any liability
of the kind described in any of the preceding clauses (i)
through (viii).
"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.
"Hedging Obligations" means, with respect to any Person,
all obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate
collar agreements, (ii) foreign exchange contracts, currency swap
agreements or similar agreements, and (iii) other agreements or
arrangements designed to protect such Person against fluctuations, or
otherwise to establish financial hedges in respect of, exchange rates,
currency rates or interest rates.
"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.
"Intercompany Debt" means Debt of the Company to United
States Fidelity and Guaranty Company and its subsidiaries.
"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.
"Proceeding" has the meaning specified in Section 1502.
"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.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any, (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the
Company to the extent that such claim for post-petition interest is
allowed in such proceeding) payable on, and fees, expenses, reimbursement
obligations, indemnity obligations and other amounts due on or
in connection with any Debt, incurred, assumed or guaranteed by
the Company whether on or prior to the date of the Indenture or
thereafter incurred, assumed or guaranteed, unless, in the
instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations
are not superior in right of payment to the Securities or to
other Debt which is pari passu with, or subordinated to the
Securities; provided, however, that Senior Debt shall not be
deemed to include (i) the Securities, (ii) intercompany debt of
the Company to any Subsidiary other than United States Fidelity
and Guaranty Company and its subsidiaries or (iii) Intercompany
Debt in excess of $250,000,000.
"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 in any reasonable
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 450 West 33rd
Street, New York, New York 10001, Attention: Corporate Trust
Group, 15th Floor, 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 units)
(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.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Debt, and
this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.
(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 Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the 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 limitations 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 shall be destroyed by the Trustee and a certificate
of destruction shall be sent to the Company, unless otherwise
instructed by the Company. 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
including, but not limited to, all amounts due the
Trustee under Section 607; 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.
Money deposited pursuant to this Section not in violation of
this Indenture shall not be subject to claims of the holders
of Senior Debt under Article Fifteen.
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 event
s and such other events as may be established with respect
to the Securities of such series as contemplated by Section
301 hereof (whether or not it shall be occasioned by the
provisions of Article Fifteen):
(1) Default in the payment of any
instalment of interest upon any of the Securitie
s 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 annulle
d 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 except such costs and expenses
as are a result of negligence or bad faith on the
part of the Trustee;
and
(2) all Events of Default with respect to
Securities of that series, other than the
non-payment of the principal of and interest,
if any, on the Securities 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, and any
other amounts due the Trustee under Section 607 except such
costs and expenses, as are a result of negligence or bad faith
on the part of the Trustee.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel except such costs and
expenses, as are a result of negligence or bad faith on the
part of the Trustee, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof
if fully paid:
FIRST: To the payment of all amounts
due the Trustee under Section 607;
SECOND: Subject to Article 15, 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.
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.
Notwithstanding any other provision in this
Indenture, but subject to Article 15, 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, shall not expose the Trustee to
personal liability and shall not unduly
prejudice Holders not joining therein, and
(2) the Trustee may take any other
action deemed proper by the Trustee which
is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction
with respect to Securities of any series, a record date shall
be set for determining the Holders of Outstanding Securities
of such series entitled to join in such direction, which
record date shall be the close of business on the day the
Trustee receives such direction. The Holders of Outstanding
Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled
to join in such direction, whether or not such Holders remain
Holders after such record date; provided that, unless such
direction shall have become effective by virtue of Holders
of at least a majority in principal amount of Outstanding
Securities of such series on such record date (or their
duly appointed agents) having joined therein on or prior
to the 90th day after such record date, such direction
shall automatically and without any action by any Person
be cancelled and of no further effect.Nothing in this
paragraph shall prevent a Holder (or a duly appointed
agent thereof) from giving, before or after the expiration
of such 90-day period, a direction contrary to or different
from, or, after the expiration of such period, identical
to, a direction that has been cancelled pursuant to the
proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to
this paragraph.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any
premium or interest on any Security of such series, or
(2) in respect of a covenant or provision
hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking
to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in
the Trust Indenture Act.
ARTICLE SIX
"THE TRUSTEE"
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. 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) prior to the occurrence of an Event of Default and after
the remedy or waiver of all Events of Default, 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 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.
Section 604. Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use
or application by the Company of Securities or the proceeds
thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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 in
writing 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.
To secure the Company's payment obligations in this Section 607,
the Trustee shall have a lien prior to the Securities on all
assets or money held or collected by the Trustee, in its
capacity as Trustee (but not in any other capacity), except
assets or money held in trust to pay principal of (premium, if
any) or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.01(6) or (7) occurs,
such expenses and the compensation for such services are
intended to constitute expenses of administration under any
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 and all other amounts due it under Section 607,
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 lien, 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 lien, 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 Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK,
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;
provided no such list need be furnished if the Trustee shall be
the 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 OF ASSETS
Section 801. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any other
Person or 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 convey, transfer, lease 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, or 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,
including, without limitation, with respect to any of the
provisions set forth in Article Fifteen, 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 modify the provisions of this
Indenture with respect to the subordination of the Securities of
any series in a manner adverse to the Holders, 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 and, to the extent that such supplemental indenture
establishes the form or terms of Securities of any series,
covering the matters that would be included in the Opinion of
Counsel described in Section 303 if such Securities were
established by Board Resolution. 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.
Section 908. Subordination Unimpaired.
No provision in any supplemental indenture that affects the
superior position of the holders of Senior Debt shall be
effective against holders of Senior Debt.
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, on or 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 mail to all
Holders or 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 mailing or 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 (which as of the date hereof is
December 31) 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.
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.
On or 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 Automated Quotation 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 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, and the provisions of
Article Fifteen shall cease to be effective, 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, and (3) the provisions of
Article Fifteen shall cease to be effective, 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.
(8) At the time of such deposit: (A) no default in the payment
of principal of (or premium, if any) or interest on any Senior
Debt shall have occurred and be continuing or (B) no other event
of default with respect to any Senior Debt shall have occurred
and be continuing and shall have resulted in such Senior Debt
becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, or, in the
case of either Clause (A) or Clause (B) above, each such default
or event of default shall have been cured or waived or shall
have ceased to exist.
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. Money so held in
trust shall not be subject to the provisions of Article Fifteen.
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.
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 Defeasance or Covenant
Defeasance with respect to the Securities of such series.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article Thirteen with respect to the
Securities of any series by reason of any order or judgment of
any court or governmental authority 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 30 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.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
Section 1501. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security,
by its acceptance thereof, likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article Four and Article
Thirteen), the payment of the principal of (and premium, if any)
and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to
the prior payment in full of all amounts then due and payable in
respect of all Senior Debt.
Section 1502. Payment Over of Proceeds Upon
Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, arrangement,
reorganization, debt restructuring or other similar case or
proceeding in connection therewith, relative to the Company, or
its creditors as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency
or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of
the Company, then and in any such event specified in (a), (b) or
(c) above (each such event, if any, herein sometimes referred to
as a "Proceeding") the holders of Senior Debt shall be entitled
to receive payment in full of all amounts due or to become due
on or in respect of all Senior Debt, or provision shall be made
for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the
Holders of the Securities are entitled to receive any payment or
distribution of any kind or character, whether in cash, property
or securities (including any payment or distribution which may
be payable or deliverable by reason of the payment of any other
Debt of the Company subordinated to the payment of the
Securities, such payment or distribution being hereinafter
referred to as "Junior Subordinated Payment"), on account of
principal of (or premium, if any) or interest on the Securities
or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary and to that end the holders of
Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, including
any Junior Subordinated Payment, which may be payable or
deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall
have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, including any Junior Subordinated Payment, before
all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, and if such fact
shall, at or prior to the time of such payment or distribution,
have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets
of the Company for application to the payment of all Senior Debt
remaining unpaid, to the extent necessary to pay all Senior Debt
in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt. Any taxes
that have been withheld or deducted from any payment or
distribution in respect of the Securities, or any taxes that
ought to have been withheld or deducted from any such payment or
distribution that have been remitted to the relevant taxing
authority, shall not be considered to be an amount that the
Trustee or the Holder of any Security receives for purposes of
this Section.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property
or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment which securities are subordinated
in right of payment to all then outstanding Senior Debt to
substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company
following the sale of all or substantially all of its properties
and assets as an entirety to another Person or the liquidation
or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in
Article Eight shall not be deemed a Proceeding for the purposes
of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by
sale such properties and assets as an entirety, as the case may
be, shall, as a part of such consolidation, merger, or sale
comply with the conditions set forth in Article Eight.
Section 1503. Prior Payment to Senior Debt
Upon Acceleration of Securities.
In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders
of the Senior Debt outstanding at the time such Securities so
become due and payable shall be entitled to receive payment in
full of all amounts due on or in respect of such Senior Debt, or
provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt, before the Holders of the Securities are
entitled to receive any payment (including any payment which may
be payable by reason of the payment of any other indebtedness of
the Company being subordinated to the payment of the Securities)
by the Company on account of the principal of (or premium, if
any) or interest on the Securities or on account of the purchase
or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in
accordance with Article Fourteen by delivering and crediting
pursuant to Section 1402 Securities which have been acquired
(upon redemption or otherwise) prior to such declaration of
acceleration or which have been converted pursuant to Article
Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section,
and if such fact shall, at or prior to the time of such payment,
have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1504. No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest or
any other payment on any Senior Debt, or in the event that any
event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such
Senior Debt becoming or being declared due and payable prior to
the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been
cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in
the event any judicial proceeding shall be pending with respect
to any such default in payment or such event of default, then no
payment (including any payment which may be payable by reason of
the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) shall be made by
the Company on account of principal of (or premium, if any) or
interest on the Securities or on account of the purchase or
other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in
accordance with Article Fourteen by delivering and crediting
pursuant to Section 1402 Securities which have been acquired
(upon redemption or otherwise) prior to such default in payment
or event of default or which have been converted pursuant to
Article Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section,
and if such fact shall, at or prior to the time of such payment,
have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1505. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at
any time except during the pendency of any Proceeding referred
to in Section 1502 or under the conditions described in Sections
1503 and 1504, from making payments at any time of principal of
(and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of
(and premium, if any) or interest on the Securities or the
retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that
such payment would have been prohibited by the provisions of
this Article.
Section 1506. Subrogation to Rights of Holders of
Senior Debt.
Subject to the payment in full of all Senior Debt, or the
provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior
Debt, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of
such Senior Debt pursuant to the provisions of this Article
(equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as
the Securities are subordinated to the Senior Debt and is
entitled to like rights of subrogation by reason of any payments
or distributions made to holders of such Senior Debt) to the
rights of the holders of such Senior Debt to receive payments or
distributions of cash, property and securities applicable to the
Senior Debt until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. If the
Trustee or the Holders of the Securities are not for any reason
entitled to be subrogated to the rights of holders of Senior
Debt in respect of such payment or distribution, then the
Trustee or the Holders of the Securities may require each holder
of Senior Debt to whom any such payment or distribution is made
as a condition to such payment or distribution to assign its
Senior Debt to the extent of such payment or distribution and
all rights with respect thereto to the Trustee on behalf of the
Holders. Such assignment shall not be effective until such time
as all Senior Debt has been paid in full or payment thereof
provided for. For purposes of such subrogation or assignment,
no payments or distributions to the holders of the Senior Debt
of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt, and
the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
Section 1507. Provisions Solely to Define Relative
Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of
the Securities on the one hand and the holders of Senior Debt on
the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or shall
(a) impair, as among the Company, its creditors other than
holders of Senior Debt, and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional
(and which, subject to the rights under this Article of the
holders of Senior Debt are intended to rank equally with all
other general unsecured obligations of the Company), to pay to
the Holders of the Securities the principal of (and premium, if
any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than the
holders of Senior Debt; or (c) prevent the Trustee or the Holder
of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture including,
without limitation, filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article of the holders
of Senior Debt to receive cash, property or securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 1508. Trustee to Effectuate
Subordination.
Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or
effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 1509. No Waiver of Subordination
Provisions.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by (i) any amendment of or
addition or supplement to any Senior Debt or any instrument or
agreement relating thereto (unless otherwise expressly provided
therein) or (ii) any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of
any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from
time to time, without the consent of or notice to the Trustee or
the Holders of the Securities, without incurring responsibility
to the Holders of the Securities, and without impairing or
releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the
holders of Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time
of payment of, or renew or alter or increase, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which
Senior Debt is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any
manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any
other Person.
Section 1510. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of
any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a
holder of Senior Debt or from any trustee, agent or
representative therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of
(and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days
prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior
Debt (or a trustee, agent or representative therefor) to
establish that such notice has been given by a holder of Senior
Debt (or a trustee, agent or representative therefor). In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as
a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction
of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and
if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 1511. Reliance on Judicial Order
or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the
provisions of Section 601, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the
benefit of creditors, agent or other Person making such payment
or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of
the Senior Debt and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article.
Section 1512. Trustee Not Fiduciary For Holders of
Senior Debt.
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders
of Securities or to the Company or to any other Person cash,
property or securities to which any holders of Senior Debt shall
be entitled by virtue of this Article or otherwise.
Section 1513. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Debt which may at any time be held by it, to the same extent as
any other holder of Senior Debt, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
Section 1514. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article in addition to or in place of
the Trustee.
Section 1515. Defeasance of This Article Fifteen.
The subordination of the Securities provided by this Article
Fifteen is expressly made subject to the provisions for
defeasance or covenant defeasance in Article Thirteen and,
anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance, the
Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Fifteen.
Section 1516. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in
accordance with Article Twelve shall not be deemed to constitute
a payment or distribution on account of the principal of (or
premium, if any) or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the
payment, issuance or delivery of cash, property or securities
(other than junior securities) upon conversion of a Security
shall be deemed to constitute payment on account of the
principal of such security. For the purposes of this Section,
the term "junior securities" means (a) shares of any stock of
any class of the Company, (b) securities of the Company which
are subordinated in right of payment to all Senior Debt which
may be outstanding at the time of issuance or delivery of such
securities to substantially the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in
this Article and (c) any securities into which Securities become
convertible pursuant to Section 1209 which are securities of a
Person required to enter into a supplemental indenture pursuant
to such Section (or Section 801) and are either (x) shares of
any stock of any class of such Person, or (y) securities of such
Person which are subordinated in right of payment to all Senior
Debt which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as,
or to a greater extent than, the Securities are so subordinated
as provided in this Article. Nothing contained in this Article
or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as among the Company, its creditors other
than holders of Senior Debt and the Holders of the Securities,
the right, which is absolute and unconditional, of the Holder of
any Security to convert such Security in accordance with Article
Twelve.
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:
_________________________________
CHEMICAL BANK, as Trustee
By____________________________
Name:
Title:
Attest:
________________________________
STATE OF _________________)
) ss.:
COUNTY OF ________________)
On the _____ day of _________, 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.
__________________________________
STATE OF _________________)
) ss.:
COUNTY OF _______________)
On the ____ day of __________, 1994, before me personally came
__________________________, to me known, who, being by me duly
sworn, did depose and say that (s)he is
___________________________ of CHEMICAL BANK, 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.
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:
_________________________________
CHEMICAL BANK, as Trustee
By____________________________
Name:
Title:
Attest:
________________________________
STATE OF _________________)
) ss.:
COUNTY OF ________________)
On the _____ day of _________, 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.
___________________________________
STATE OF _________________)
) ss.:
COUNTY OF ________________)
On the _____ day of _________, 1994, before me personally came
____________________________, to me known, who, being by me duly
sworn, did depose and say that (s)he is
_____________________________ of CHEMICAL BANK, 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.
__________________________________