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EXHIBIT 4.2
FORM OF FIRST SUPPLEMENTAL INDENTURE
Dated as of April __, 1998
between
PHILADELPHIA CONSOLIDATED HOLDING CORP.
AS ISSUER
and
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS................................................................ 1
SECTION 1.1. Definition of Terms.......................................... 1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES............................. 3
SECTION 2.1. Designation and Principal Amount............................. 3
SECTION 2.2. Maturity..................................................... 3
SECTION 2.3. Form and Payment............................................. 3
SECTION 2.4. Global Debenture............................................. 3
SECTION 2.5. Interest..................................................... 4
ARTICLE III
REDEMPTION OF THE DEBENTURES............................................... 5
SECTION 3.1. Tax Event Redemption......................................... 5
SECTION 3.2. Redemption Procedure for Debentures.......................... 5
SECTION 3.3. No Sinking Fund.............................................. 6
SECTION 3.4. Option to Put Debentures upon a Failed Remarketing........... 6
SECTION 3.5. Repurchase Procedure for Debentures.......................... 6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD....................................... 6
SECTION 4.1. Extension of Interest Payment Period......................... 6
SECTION 4.2. Notice of Extension.......................................... 7
ARTICLE V
EXPENSES................................................................... 8
SECTION 5.1. Payment of Expenses.......................................... 8
SECTION 5.2. Payment Upon Resignation or Removal.......................... 8
ARTICLE VI
NOTICE..................................................................... 8
SECTION 6.1. Notice by the Company........................................ 8
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Page
ARTICLE VII
FORM OF DEBENTURE.......................................................... 9
SECTION 7.1. Form of Debenture............................................ 9
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES............................................... 17
SECTION 8.1. Original Issue of Debentures................................. 17
ARTICLE IX
MISCELLANEOUS.............................................................. 17
SECTION 9.1. Ratification of Indenture.................................... 17
SECTION 9.2. Trustee Not Responsible for Recitals......................... 17
SECTION 9.3. Governing Law................................................ 17
SECTION 9.4. Separability................................................. 17
SECTION 9.5. Counterparts................................................. 17
SECTION 9.6. Guarantee and Declaration.................................... 18
ARTICLE X
REMARKETING................................................................ 18
SECTION 10.1. Effectiveness of this Article................................ 18
SECTION 10.2. Remarketing Procedures....................................... 18
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FORM OF FIRST SUPPLEMENTAL INDENTURE, dated as of April __, 1998 (the
"First Supplemental Indenture"), between PHILADELPHIA CONSOLIDATED HOLDING
CORP., a corporation duly organized and existing under the laws of the State of
Pennsylvania, (the "Company"), and The First National Bank of Chicago, as
trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture dated as of
April __, 1998 (the "Base Indenture"), to the Trustee to provide for the future
issuance of the Company's senior unsecured debentures, notes or other evidence
of indebtedness (the "Securities"), to be issued from time to time in one or
more series as might be determined by the Company under the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its __% Debentures due ___ 16, 2003 (the "Debentures"), the form and
substance of such Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Base Indenture and this First Supplemental
Indenture (together, the "Indenture");
WHEREAS, PCHC Financing I, a Delaware statutory business trust (the
"Trust"), has offered to the public its __% Trust Originated Preferred
Securities (the "Trust Preferred Securities"), representing, undivided
beneficial ownership interests in the assets of the Trust, and proposes to
invest the proceeds from such offering, together with the proceeds of the
issuance and sale by the Trust to the Company of its __% Common Securities (the
"Common Securities" and together with the Trust Preferred Securities, the "Trust
Securities"), in the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company and all acts and
things necessary have been done and performed to make this First Supplemental
Indenture enforceable in accordance with its terms, and the execution and
delivery of this First Supplemental Indenture has been duly authorized in all
respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Declaration: (i) Applicable Principal Amount; (ii)Authorized Newspaper; (iii)
Business Day; (iv) Clearing Agency; (v) Delaware Trustee; (vi) DTC; (vii) FELINE
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PRIDES; (viii) Growth PRIDES; (ix) Income PRIDES; (x) Institutional Trustee;
(xi) Investment Company Event; (xii) Trust Preferred Security Certificate;
(xiii) Pricing Agreement; (xiv) Purchase Agreement; (xv) Put Option (xvi)
Quotation Agent; (xvii) Regular Trustees; (xviii) Redemption Amount, (xix) Reset
Agent; (xx) Reset Announcement Date; (xxi) Reset Spread;(xxii) Tax Event;
(xxiii) Tax Event Redemption Date; (xxvi) Treasury Portfolio Purchase Price;
(xxv) Treasury Portfolio; and (xxvi) Treasury Securities and (xxvii) Two-Year
Benchmark Treasury.
(f) the following terms have the meanings given to them in this Section
1.11(f):
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodial Agent" means Chase Manhattan Bank, as Custodial Agent.
"Debenture Repayment Price" shall have the meaning set forth in Section
3.4.
"Declaration" means the Amended and Restated Declaration of Trust of
PCHC Financing I, a Delaware statutory business trust, dated as of April __,
1998.
"Deferred Interest" shall have the meaning set forth in Section 4.1
hereof.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Tax Event, an Investment Company Event or otherwise, the Trust
is to be dissolved in accordance with the Declaration, and, except in the case
of a Tax Event Redemption, the Debentures held by the Institutional Trustee are
to be distributed to the holders of the Trust Securities issued by the Trust pro
rata in accordance with the Declaration.
"Exchange Agent" means the Institutional Trustee.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Failed Remarketing" shall have the meaning set forth in Section 5.4(b)
of the Purchase Contract Agreement.
"Global Debentures" shall have the meaning set forth in Section 2.4.
"Non Book-Entry Trust Preferred Securities" shall have the meaning set
forth in Section 2.4 .
"Pledge Agreement" means the Pledge Agreement dated as of April __,
1998, among the Company, the Trust, Chase Manhattan Bank, as collateral agent
and The First National Bank of Chicago, as purchase contract agent.
"Purchase Contract" shall have the meaning set forth in the Purchase
Contract Agreement, dated as of April __, 1998, between the Company and The
First National Bank of Chicago, as purchase contract agent.
"Purchase Contract Settlement Date" means ___ 16, 2001.
"Remarketing Agent" means Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
April __, 1998, among the Company, the Trust, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as remarketing agent and The First
National Bank of Chicago, as purchase contract agent.
"Remarketing Date" shall have the meaning set forth in the Remarketing
Agreement.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.01. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the __%
Debentures (the "Debentures") due ___ 16, 2003, limited in aggregate principal
amount to $ _________, which amount shall be as set forth in any written order
of the Company for the authentication and delivery of Debentures pursuant to
Section 303 of the Base Indenture.
SECTION 2.02. Maturity. The Maturity Date will be ___ 16, 2003.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons, bearing identical
terms. Principal and interest on the Debentures issued in certificated form will
be payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Institutional Trustee; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the Holder at such address as shall appear in the Security
Register. Notwithstanding the foregoing, so long as the Holder of any Debentures
is the Institutional Trustee, the payment of the principal of and interest
(including Compounded Interest and expenses and taxes of the Trust set forth in
Section 4.1 hereof, if any) on such Debentures held by the Institutional Trustee
will be made at such place and to such account as may be designated by the
Institutional Trustee.
SECTION 2.04. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name of
the Clearing Agency, or its nominee, and delivered by the Institutional Trustee
to the Clearing Agency for crediting to the accounts of its participants
pursuant to the instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate principal amount
and deliver the same to the Trustee for authentication and delivery in
accordance with the Indenture. Payments on the Debentures issued as a Global
Debenture will be made to the Clearing Agency; and
(ii) if any Trust Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee and any Trust Preferred
Security Certificate which represents Trust Preferred Securities other than
Trust Preferred Securities held by the Clearing Agency or its nominee ("Non
Book-Entry Trust Preferred Securities") will be deemed to represent beneficial
interests in the Debentures presented to the Trustee by the Institutional
Trustee having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Trust Preferred Securities until such Trust
Preferred Security Certificates are presented to the Security Registrar for
transfer or reissuance at which time such Trust Preferred Security Certificates
will be cancelled and a Debenture, registered in the name of the holder of the
Trust Preferred Security Certificate or the transferee of the holder of such
Trust Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Trust
Preferred Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with the
Indenture to such holder. On issue of such Debentures, Debentures with an
equivalent
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aggregate principal amount that were presented by the Institutional Trustee to
the Trustee will be deemed to have been cancelled.
(b) Unless and until it is exchanged for the Debentures in registered
form, a Global Debenture may be transferred, in whole but not in part, only to
another nominee of the Clearing Agency, or to a successor Clearing Agency
selected or approved by the Company or to a nominee of such successor Clearing
Agency.
(c) If at any time the Clearing Agency notifies the Company that it is
unwilling or unable to continue as a Clearing Agency or if at any time the
Clearing Agency for such series shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, and a successor Clearing Agency for such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, the Company
will execute, and, subject to Article III of the Indenture, the Trustee, upon
written notice from the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. In addition, the Company may at
any time determine that the Debentures shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to Section
3.3 of the Base Indenture, the Trustee, upon receipt of an Officer's Certificate
evidencing such determination by the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall be
cancelled by the Trustee. Such Debentures in definitive registered form issued
in exchange for the Global Debenture shall be registered in such names and in
such authorized denominations as the Clearing Agency, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Clearing Agency for
delivery to the Persons in whose names such Securities are so registered.
SECTION 2.05. Interest.
(a) Each Debenture will bear interest initially at the rate of __% per
annum (the "Coupon Rate") from the original date of issuance until ____ 15,
2001, and at the Reset Rate thereafter until the principal thereof becomes due
and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the Coupon Rate until ____ 15, 2001 and at the Reset Rate
thereafter, compounded quarterly, payable (subject to the provisions of Article
IV herein) quarterly in arrears on February 16, May 16, August 16 and November
16 of each year (each, an "Interest Payment Date") commencing on ____ 16, 1998,
to the Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the Regular Record Date for such
interest installment, which, in respect of (i) Debentures of which the
Institutional Trustee is the Holder and the Trust Preferred Securities are in
book-entry only form or (ii) a Global Debenture, shall be the close of business
on the Business Day next preceding that Interest Payment Date. Notwithstanding
the foregoing sentence, if (i) the Debentures are held by the Institutional
Trustee and the Trust Preferred Securities are no longer in book-entry only form
or (ii) the Debentures are not represented by a Global Debenture, the Company
may select a Regular Record Date for such interest installment which shall be
more than one Business Day but less than 60 Business Days prior to an Interest
Payment Date.
(b) The Coupon Rate on the Debentures will be reset on the third
Business Day immediately preceding the Purchase Contract Settlement Date to the
Reset Rate (which Reset Rate will become effective on and after the Purchase
Contract Settlement Date). On the tenth (10) Business Day immediately preceding
the Purchase Contract Settlement Date, the Reset Announcement Date, the Reset
Spread and the relevant Two-Year Benchmark Treasury will be announced by the
Company. On the Business Day immediately following such Reset Announcement Date,
the Holders of Debentures will be notified of such Reset Spread and Two-Year
Benchmark Treasury by the Company. Such notice shall be sufficiently given to
such Holders of Debentures if published in an Authorized Newspaper.
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(c) Not later than seven calendar days nor more than 15 calendar days
immediately preceding the Reset Announcement Date, the Company will request that
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) or the Institutional Trustee, notify the Holders of Debentures of such
Reset Announcement Date and the procedures to be followed by such holders of
Debentures wishing to settle the related Purchase Contract with separate cash on
the Business Day immediately preceding the Purchase Contract Settlement Date.
(d) The amount of interest payable for any period will be computed on
the basis of a 360-day year consisting of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed, will
be computed on the basis of the actual number of days elapsed in such a 90-day
period. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.01. Tax Event Redemption.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Debentures in whole (but not in part) at any time at a
Redemption Price per Debenture equal to the Redemption Amount plus accrued and
unpaid interest thereon, including Compounded Interest and the expenses and
taxes of the Trust set forth in Section 4.1 hereof, if any, to the date of such
redemption (the "Tax Event Redemption Date"). If, following the occurrence of a
Tax Event, the Company exercises its option to redeem the Debentures, then the
proceeds of such redemption, if distributed to the Institutional Trustee as the
sole Holder of such Debentures, will be applied by the Institutional Trustee to
redeem Trust Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so redeemed, at the Redemption
Price. If, following the occurrence of a Tax Event prior to the Purchase
Contract Settlement Date, the Company exercises its option to redeem the
Debentures, the Company shall appoint the Quotation Agent to assemble the
Treasury Portfolio in consultation with the Company. Notice of any redemption
will be mailed at least 30 days but not more than 60 days before the Tax Event
Redemption Date to each registered Holder of the Debentures to be prepaid at its
registered address. Unless the Company defaults in payment of the Redemption
Price, on and after the redemption date interest shall cease to accrue on such
Debentures.
SECTION 3.02. Redemption Procedure for Debentures.
Payment of the Redemption Price to each Holder of Debentures shall be
made by the Paying Agent, no later than 12:00 noon, New York City time, on the
Tax Event Redemption Date, by check or wire transfer in immediately available
funds at such place and to such account as may be designated by each such Holder
of Debentures, including the Institutional Trustee or the Collateral Agent, as
the case may be. If the Trustee holds immediately available funds sufficient to
pay the Redemption Price of the Debentures (or, if the Company is acting as
Paying Agent or the Institutional Trustee has received the Redemption Price),
then, on such Tax Event Redemption Date, such Debentures will cease to be
outstanding and interest thereon will cease to accrue, whether or not such
Debentures have been received by the Company, and all other rights of the Holder
in respect of the Debentures shall terminate and lapse (other than the right to
receive the Redemption Price upon delivery of such Debentures but without
interest on such Redemption Price).
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SECTION 3.03. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
SECTION 3.04. Option to Put Debentures upon a Failed Remarketing.
If a Failed Remarketing (as described in Section 5.4(b) of the Purchase
Contract Agreement and incorporated herein by reference) has occurred, each
holder of Securities who holds such Securities on the day immediately following
the Purchase Contract Settlement Date, shall, upon at least three Business Days'
prior notice, have the right (the "Put Option") on the Business Day immediately
following __ 16, 2001, to require the Trust to distribute their pro rata share
of Debentures to the Exchange Agent and to require the Exchange Agent to put
such Debentures, on behalf of such holders on ____ __, 2001 (the "Put Option
Exercise Date") at a repayment price of $10 per Security plus an amount equal to
the accrued and unpaid Distributions (including deferred distributions, if any)
thereon to the date of payment (the "Debenture Repayment Price").
SECTION 3.05. Repurchase Procedure for Debentures.
(a) In order for the Debentures to be repurchased on the Put
Option Exercise Date, the Company must receive on or prior to 5:00 p.m. New York
City time on the third Business Day immediately preceding the Put Option
Exercise Date, at the principal executive offices of Philadelphia Consolidated
Holding Corp. in Bala Cynwyd, Pennsylvania, the Debentures to be repurchased
with the form entitled "Option to Elect Repayment" on the reverse of or
otherwise accompanying such Debentures duly completed. Any such notice received
by the Trustee shall be irrevocable. All questions as to the validity,
eligibility (including time of receipt) and acceptance of the Debentures for
repayment shall be determined by the Company, whose determination shall be final
and binding.
(b) Payment of the Debenture Repayment Price to the Exchange
Agent shall be made through the Trustee, subject to the Trustee's receipt of
payment from the Company in accordance with the terms of the Indenture either
through the Trustee or the Company acting as Paying Agent, no later than 12:00
noon, New York City time, on the Put Option Exercise Date, and to such account
as may be designated by the Exchange Agent. If the Trustee holds immediately
available funds sufficient to pay the Debenture Repayment Price of the
Debentures presented for repayment (or, if the Company is acting as Paying Agent
and the Institutional Trustee has received the Debenture Repayment Price), then,
immediately prior to the close of business on the Business Day immediately
preceding the Put Option Exercise Date, such Debentures will cease to be
outstanding and interest thereon will cease to accrue, whether or not such
Debentures have been received by the Company, and all other rights of the Holder
in respect of the Debentures, including the Holder's right to require the
Company to repay such Debentures, shall terminate and lapse (other than the
right to receive the Debenture Repayment Price upon delivery of such Debentures
but without interest on such Debenture Repayment Price). Neither the Trustee nor
the Company will be required to register or cease to be registered the transfer
of any Debenture for which repayment has been elected.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01. Extension of Interest Payment Period.
The Company shall have the right at any time, and from time to time,
during the term of the Debentures, to defer payments of interest by extending
the interest payment period of such Debentures for a period not extending, in
the aggregate, beyond the Maturity Date of the Debentures (the "Extended
Interest Payment Period"), during which Extended Interest Payment Period no
interest shall be due and payable. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear interest thereon
at the rate of ___% until ___ 15, 2001, and at the Reset Rate thereafter
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compounded quarterly for each quarter of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest Payment Period, the
Company shall pay all interest accrued and unpaid on the Debentures, including
any expenses and taxes of the Trust set forth in Section 5.1 hereof and
Compounded Interest (together, "Deferred Interest") that shall be payable to the
Holders of the Debentures in whose names the Debentures are registered in the
Security Register on the first record date after the end of the Extended
Interest Payment Period; provided, however, that during any such Extended
Interest Payment Period, (a) the Company shall not declare or pay dividends on
or make any distribution with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of capital stock of the Company in connection with the
satisfaction by the Company of its obligations under any employee benefit plans
or the satisfaction by the Company of its obligations pursuant to any contract
or security outstanding on the date of such event requiring the Company to
purchase capital stock of the Company, (ii) as a result of a reclassification of
the Company's capital stock or the exchange or conversion of one class or series
of the Company's capital stock for another class or series of the Company
capital stock, (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (iv) dividends
or distributions in capital stock of the Company (or rights to acquire capital
stock) or repurchases or redemptions of capital stock solely from the issuance
or exchange of capital stock or (v) redemptions or repurchases of any rights
outstanding under a shareholder rights plan or the declaration thereunder of a
dividend of rights in the future), (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank junior to the Debentures, and
(c) the Company shall not make any guarantee payments with respect to the
foregoing (other than payments pursuant to the Guarantee). Prior to the
termination of any Extended Interest Payment Period, the Company may further
extend such period, provided that such period together with all such previous
and further extensions thereof shall not extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extended Interest Payment Period and the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company, at its option, may prepay on any
Interest Payment Date all or any portion of the interest accrued during the then
elapsed portion of an Extended Interest Payment Period.
SECTION 4.02. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Regular Trustees, the Institutional
Trustee and the Trustee of its selection of such Extended Interest Payment
Period one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by the Trust are payable, or
(ii) the date the Trust is required to give notice of the record date, or the
date such Distributions are payable, to the [Securities Exchange] or other
applicable self-regulatory organization or to holders of the Trust Preferred
Securities issued by the Trust, but in any event at least one Business Day
before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give the Holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to the [Securities Exchange] or other
applicable self-regulatory organization or to Holders of the Debentures.
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ARTICLE V
EXPENSES
SECTION 5.01. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to
the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 607 of the Base Indenture;
(b) pay all costs and expenses of the Trust including, but not limited
to, costs and expenses relating to the organization of the Trust, the offering,
sale and issuance of the Trust Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets) to which the Trust
might become subject;
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
SECTION 5.02. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Base
Indenture or the removal or resignation of the Trustee, the Company shall pay to
the Trustee all amounts accrued to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Institutional Trustee, as the case may be, the
Company shall pay to the Delaware Trustee or the Institutional Trustee, as the
case may be, all amounts accrued to the date of such termination, removal or
resignation.
ARTICLE VI
NOTICE
SECTION 6.01. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Debentures
pursuant to the provisions of this Article VI. Notwithstanding any of the
provisions of the Base Indenture and this First Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of the Base Indenture;
provided, however, that if the Trustee shall not have received the notice
provided for in this Article VI 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 (or premium, if
any) or interest on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall
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have full power and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected by any notice
to the contrary that may be received by it within two Business Days prior to
such date.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.01. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - THIS DEBENTURE
IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE OR THE
CLEARING AGENCY. THIS DEBENTURE IS EXCHANGEABLE FOR DEBENTURES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE AS A WHOLE BY THE CLEARING
AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING
AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.]
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY DEBENTURE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
No._____________________
$_______________________
PHILADELPHIA CONSOLIDATED HOLDING CORP.
___% DEBENTURE
DUE ___ 16, 2003
PHILADELPHIA CONSOLIDATED HOLDING CORP., a Pennsylvania corporation
(the "Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , the principal sum of ($______________) on ___ 16, 2003 (such date
is hereinafter referred to as the "Maturity Date"), and to pay interest on said
principal sum from _______, 1998, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on February 16, May 16, August 16 and November 16 of each year,
commencing on ___ 16, 1998, initially
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at the rate of ___% per annum until ___ 15, 2001, and at the Reset Rate
thereafter until the principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the rate of ___% until ____ 15, 2001, and at
the Reset Date thereafter, compounded quarterly. The interest rate will be reset
on the third business day preceding ____ 16, 2001 to the Reset Rate (as
determined by the Reset Agent). The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. In the event that any date on which interest is payable on
this Debenture is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment which in the case of a Global Debenture shall be the close of
business on the business day next preceding such Interest Payment Date;
provided, however, if pursuant to the terms of the Indenture the Debentures are
no longer represented by a Global Debenture, the Company may select such regular
record date for such interest installment which shall be more than one Business
Day but less than 60 Business Days prior to an Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holders on such regular record date and
may be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of this series
of Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holders at such address
as shall appear in the Security Register or by wire transfer to an account
appropriately designated by the Holders entitled thereto. Notwithstanding the
foregoing, so long as the Holder of this Debenture is the Institutional Trustee
or the Collateral Agent, the payment of the principal of (and premium, if any)
and interest on this Debenture will be made at such place and to such account as
may be designated in writing by the Institutional Trustee or the Collateral
Agent.
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, senior and unsecured and will rank in right of payment on
parity with all other senior unsecured obligations of the Company.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: April __, 1998
PHILADELPHIA CONSOLIDATED HOLDING CORP.
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
Attest:
By:______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within-mentioned Indenture.
Dated____________________________
The First National Bank of Chicago
as Trustee
By:______________________________
Authorized Signatory
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of April __, 1998 (the "Base Indenture"), duly executed
and delivered between the Company and The First National Bank of Chicago, as
Trustee (the "Trustee") (as supplemented by a First Supplemental Indenture,
dated April __, 1998), (the Base Indenture as so supplemented, the "Indenture"),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of the
Securities. By the terms of the Indenture, the Securities are issuable in series
that may vary as to amount, date of maturity, rate of interest and in other
respects as provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said First Supplemental Indenture.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem Debentures in whole (but not in part) at any time at a Redemption
Price per Debenture equal to the Redemption Amount plus accrued and unpaid
interest thereon, including Compounded Interest and expenses and taxes of the
Trust (each as defined herein), if any, to the Tax Event Redemption Date. The
Redemption Price shall be paid to each Holder of the Debenture by the Company,
no later than 12:00 noon, New York City time, on the Tax Event Redemption Date,
by check or wire transfer in immediately available funds, at such place and to
such account as may be designated by each such Holder.
The Debentures are not entitled to the benefit of any sinking fund.
If a Failed Remarketing (as described in Section 5.4(b) of the Purchase
Contract Agreement and incorporated herein by reference) has occurred, each
holder of Securities who holds such Securities on the day immediately following
The Purchase Contract Settlement Date, shall, upon at least three Business Days'
prior notice, have the right (the "Put Option") on the Business Day immediately
following ___ 16, 2001, to require the Trust to distribute their pro rata share
of Debentures to the Exchange Agent and to require the Exchange Agent to put
such Debentures, on behalf of such holders on June 1, 2001 (the "Put Option
Exercise Date") at a repayment price of $10 per Security plus an amount equal to
the accrued and unpaid Distributions (including deferred distributions, if any)
thereon to the date of payment (the "Debenture Repayment Price").
In order for the Debentures to be so repurchased, the Company must receive,
on or prior to 5:00 p.m. New York City Time on the third Business Day
immediately preceding the Put Option Exercise Date, at the principal executive
offices of Philadelphia Consolidated Holding Corp. in Bala Cynwyd, Pennsylvania,
the Debentures to be repurchased with the form entitled "Option to Elect
Repayment" on the reverse of or otherwise accompanying such Debentures duly
completed. Any such notice received by the Trustee shall be irrevocable. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of the Debentures for repayment shall be determined by the Company,
whose determination shall be final and binding. The payment of the Debenture
Repayment Price in respect of such Debentures shall be made, either through the
Trustee or the Company acting as Paying Agent, no later than 12:00 noon, New
York City time, on the Put Option Exercise Date.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of, among other things, adding any provisions to or changing or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying the rights of the Holders of the Debentures; provided,
however, that, among other things, no such
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supplemental indenture shall (i) reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon (subject to the
Company's right to defer such payments in the manner set forth herein), or
reduce any premium payable upon the redemption thereof, without the consent of
the Holder of each Debenture so affected, or (ii) reduce the aforesaid
percentage of Debentures, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each
Debenture then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive a Default or
Event of Default with respect to such series, and its consequences, except a
Default or Event of Default in the payment of the principal of or premium, if
any, or interest on any of the Securities of such series. Any such consent or
waiver by the registered Holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange for or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
So long as the Company is not in default in the payment of interest on the
Debenture, the Company shall have the right at any time during the term of the
Debentures from time to time to extend the interest payment period of such
Debentures for a period not extending, in the aggregate, beyond the Maturity
Date of the Debentures (an "Extended Interest Payment Period"). At the end of an
Extended Interest Payment Period, the Company shall pay all interest then
accrued and unpaid (together with the interest thereon at the rate of __% until
___ 15, 2001 and at the Reset Rate thereafter to the extent that payment of such
interest is enforceable under applicable law). In the event that the Company
exercises this right, then (a) the Company shall not declare or pay dividends or
make any distribution with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of capital stock of the Company in connection with the
satisfaction by the Company of its obligations under any employee benefit plans
or the satisfaction by the Company of its obligations pursuant to any contract
or security outstanding on the date of such event requiring the Company to
purchase capital stock of the Company, (ii) as a result of a reclassification of
the Company's capital stock or the exchange or conversion of one class or series
of the Company's capital stock for another class or series of the Company's
capital stock, (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (iv) dividends
or distributions in capital stock of the Company (or rights to acquire capital
stock) or repurchases or redemptions of capital stock solely from the issuance
or exchange of capital stock or (v) redemptions or purchases of any rights
outstanding under a shareholder rights plan or the declaration thereunder of a
dividend of rights in the future), (b) the Company shall not make any payment of
interest, principal or premium, if any, or repay, repurchase or redeem any debt
securities issued by the Company that rank junior to the Debentures, and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than payments pursuant to the Guarantee). Prior to the termination of any
such Extended Interest Payment Period, the Company may further extend the
interest payment period; provided, that such Extended Interest Payment Period,
together with all such previous and further extensions thereof, may not extend
beyond the Maturity Date of the Debenture. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and unpaid
interest and any additional amount then due, the Company may commence a new
Extended Interest Payment Period, subject to the above requirements.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee in The City of
New York and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued
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to the designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture, the
Company, the Trustee, any Paying Agent and the Security Registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any Paying Agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the interest
on this Debenture, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
shareholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or 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 issuance hereof, expressly waived and
released.
The Indenture imposes certain limitations on the ability of the Company to,
among other things, merge or consolidate with any other Person or sell, assign,
transfer or lease all or substantially all of its properties or assets. All such
covenants and limitations are subject to a number of important qualifications
and exceptions. The Company must report periodically to the Trustee on
compliance with the covenants in the Indenture.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $10 and any integral multiple thereof. This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. As provided in the Indenture
and subject to certain limitations therein set forth, Debentures of this series
so issued are exchangeable for a like aggregate principal amount of Debentures
of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay $_____ principal amount of the within Debenture, pursuant to its terms,
on the "Put Option Exercise Date," together with any interest thereon accrued
but unpaid to the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the Debenture, a new
Debenture or Debentures representing the remaining aggregate principal amount of
this Debenture.
For this Option to Elect Repayment to be effective, this Debenture with the
Option to Elect Repayment duly completed must be received by the Company at
Philadelphia Consolidated Holding Corp., Attn: Secretary, One Bala Plaza, Suite
100, Bala Cynwyd, Pennsylvania, 19004, no later than 5:00 p.m. on June 1, 2001.
Dated: Signature:__________________________________
Signature Guarantee:________________________
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Debenture without alternation or
enlargement or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Debenture to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Debenture on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
----------------------------
Signature:
----------------------------------
Signature Guarantee:
------------------------
(Sign exactly as your name appears on the other side of this Debenture)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.01. Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________ may, upon
execution of this First Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of the year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Ratification of Indenture.
The Indenture as supplemented by this First Supplemental Indenture, is
in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 9.02. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 9.03. Governing Law.
This First Supplemental Indenture and each Debenture shall be deemed to
be a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 9.04. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.05. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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SECTION 9.06. Guarantee and Declaration
The Guarantee and the Declaration shall be deemed to be specifically
described in this First Supplemental Indenture for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE X
REMARKETING
SECTION 10.01. Effectiveness of this Article.
This Article Ten shall only become effective upon a
Dissolution Event which occurs prior to the Remarketing of the Trust Preferred
Securities pursuant to this Agreement. Until such Dissolution Event, this
Article Ten shall have no effect.
SECTION 10.02. Remarketing Procedures.
(a) The Company shall request, not later than 15 nor more than
30 calendar days prior to the Remarketing Date that the Depositary notify the
Holders of the Debentures and the holders of FELINE PRIDES of the Remarketing
and of the procedures that must be followed if a Holder of Debentures wishes to
exercise such Holder's rights with respect to the Put Option if there is a
Failed Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, each
Holder of the Debentures may elect to have Debentures held by such Holder
remarketed. Under Section 5.4 of the Purchase Contract Agreement, Holders of
Income PRIDES that do not give notice of their intention to make a Cash
Settlement of their related Purchase Contracts in the manner specified in such
Section shall be deemed to have consented to the tender for purchase of the
Debentures comprising a component of such Income PRIDES. Holders of Debentures
that are not a component of Income PRIDES shall give notice of their election to
have such Securities remarketed to the Custodial Agent pursuant to the Pledge
Agreement. Any such notice shall be irrevocable after 5:00 P.M., New York City
time, on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date and may not be conditioned upon the level at which the Reset
Rate is established. Promptly after 5:30 P.M., New York City time, on such fifth
Business Day, the Trustee, based on the notices received by it prior to such
time (including notices from the Purchase Contract Agent as to Purchase
Contracts as to which Cash Settlement has been elected), shall notify the Trust,
the Company and the Remarketing Agent of the number of Debentures to be tendered
for purchase.
(c) If any Holder of Income PRIDES does not give a notice of
intention to make a Cash Settlement or gives a notice of election to tender
Debentures as described in Section 10.2(b), the Debentures of such Holder shall
be deemed tendered, notwithstanding any failure by such Holder to deliver or
properly deliver such Debentures to the Remarketing Agent for purchase.
(d) The right of each Holder to have Debentures tendered for
purchase shall be limited to the extent that (i) the Remarketing Agent conducts
a remarketing pursuant to the terms of the Remarketing Agreement, (ii)
Debentures tendered have not been called for redemption, (iii) the Remarketing
Agent is able to find a purchaser or purchasers for tendered Debentures and (iv)
such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent.
(e) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price equal to 100% of the
aggregate principal amount thereof, Debentures tendered or deemed tendered for
purchase.
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(f) If none of the Holders elect to have Debentures held by
them remarketed, the Reset Rate shall be the rate determined by the Remarketing
Agent, in its sole discretion, as the rate that would have been established had
a remarketing been held on the Remarketing Date.
(g) If the Remarketing Agent has determined that it will be
able to remarket all Debentures tendered or deemed tendered for purchase at a
price of at least 100% of the aggregate principal amount thereof prior to 4:00
P.M., New York City time, on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum (rounded to the
nearest one-thousandth (0.001) of one percent per annum) which the Remarketing
Agent determines, in its sole judgment, to be the lowest rate per annum that
will enable it to remarket all Debentures tendered or deemed tendered for
remarketing.
(h) If, by 4:00 P.M., New York City time, on the Remarketing
Date, the Remarketing Agent is unable to remarket all Debentures tendered or
deemed tendered for purchase, a Failed Remarketing shall be deemed to have
occurred and the Remarketing Agent shall so advise by telephone the Clearing
Agency, the Trustee, the Company and the Collateral Agent.
(i) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Clearing Agency, the
Trustee, the Company and the Collateral Agent of the Reset Rate determined in
the Remarketing and the number of Debentures sold in such remarketing, (ii) each
purchaser (or the Depositary Participant thereof) of the Reset Rate and the
number of Debentures such purchaser is to purchase and (iii) each purchaser to
give instructions to its Clearing Agency Participant to pay the purchase price
on the Purchase Contract Settlement Date in same day funds against delivery of
the Debentures purchased through the facilities of the Clearing Agency.
(j) In accordance with the Clearing Agency's normal
procedures, on the Purchase Contract Settlement Date, the transactions described
above with respect to each Debenture tendered for purchase and sold in the
remarketing shall be executed through the Clearing Agency, and the accounts of
the respective Clearing Agency, Participants shall be debited and credited and
such Debentures delivered by book entry as necessary to effect purchases and
sales of such Debentures. The Clearing Agency shall make payment in accordance
with its normal procedures.
(k) If any holder selling Debentures in the remarketing fails
to deliver such Debentures, the Participant of such selling holder and of any
other person that was to have purchased Debentures in the remarketing may
deliver to any such other person a number of Debentures that is less than the
number of Debentures that otherwise was to be purchased by such person. In such
event, the number of Debentures to be so delivered shall be determined by such
Clearing Agency Participant, and delivery of such lesser number of Debentures
shall constitute good delivery.
(l) The Remarketing Agent is not obligated to purchase any
Debentures that would otherwise remain unsold in a remarketing. Neither the
Trust, any Trustee, the Company nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of Debentures for
remarketing.
(m) The tender and settlement procedures set in this Section
10.02, including provisions for payment by purchasers of Securities in the
Remarketing, shall be subject to modification, notwithstanding any provision to
the contrary set forth herein, to the extent required by the Clearing Agency or
if the book-entry system is no longer available for the Debentures at the time
of the remarketing, to facilitate the tendering and remarketing of Debentures in
certificated form. In addition, the Remarketing Agent may, notwithstanding any
provision to the contrary set forth herein, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
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23
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the acknowledgments
and as of the day and year first above written.
PHILADELPHIA CONSOLIDATED
HOLDING CORP.,
as Issuer
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By:__________________________________
Name:
Title: