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EXHIBIT 4.1
MERCURY GENERAL CORPORATION
OFFICERS' CERTIFICATE
DATED AS OF AUGUST 2, 2001
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SETTING FORTH TERMS OF A SERIES OF DEBT SECURITIES
7.25% SENIOR NOTES DUE 2011
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PURSUANT TO THE INDENTURE
DATED AS OF JUNE 1, 2001
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OFFICERS' CERTIFICATE
The undersigned, the Chairman of the Board, President and Chief
Executive Officer and the Vice President and Chief Financial Officer of Mercury
General Corporation, a California corporation (the "Company"), hereby certify as
provided below pursuant to Section 301 of the Indenture, dated as of June 1,
2001 (the "Indenture"), between the Company and Bank One Trust Company, National
Association (the "Trustee"). This Officers' Certificate is delivered, pursuant
to authority granted to the undersigned by the resolutions adopted on April 27,
2001 by the Board of Directors of the Company, for the purpose of creating and
setting forth the terms of a series of Securities to be issued pursuant to the
Indenture. Capitalized terms not otherwise defined herein are used as defined in
the Indenture.
1. The Board of Directors of the Company has authorized the
creation by the Company of one or more series of Securities under the Indenture
through one or more Officers' Certificates and, pursuant to such authorization
and in accordance with the Indenture, this Officers' Certificate is being
delivered to the Trustee to establish the terms of a series of Securities as set
forth therein.
2. The title of the Securities shall be "7.25% Senior
Notes due 2011" (herein called the "Notes").
3. The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture is limited to U.S. $125,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes as provided in Sections 304, 305,
306, 906, or 1106 of the Indenture, upon surrender in part of any registered
Security for conversion into other securities of the Company or exchange for
securities of another issuer pursuant to its terms, or pursuant to or as
contemplated by the terms of such Notes. Notwithstanding the foregoing
limitation on aggregate principal amount of the Notes, the Company may, without
the consent of the Holders, issue additional Notes and thereby increase the
principal amount of the Notes in the future, on the same terms and conditions
and with the same CUSIP number as the Notes offered pursuant to this Officers'
Certificate.
4. The Notes shall be issuable as registered Securities
and shall not be exchangeable for bearer Securities.
5. Subject to earlier redemption at the option of the
Company, the principal of the Notes shall be payable in U.S. dollars on
August 15, 2011.
6. The Notes shall bear interest at the rate of 7.25% per annum;
such interest shall accrue from August 7, 2001 (or from the most recent Interest
Payment Date to which interest on the Notes has been paid or provided for); the
Interest Payment Dates on which such interest shall be payable shall be February
15 and August 15 in each year, commencing February 15, 2002; the Regular Record
Dates for the determination of Holders to whom
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interest is payable shall be the February 1 and August 1 next preceding each
Interest Payment Date. Interest on the Notes shall be payable in U.S. dollars.
7. Pursuant to the Indenture, the Trustee has been appointed as
the Security Registrar for the Notes. The Trustee is hereby further appointed as
the initial Paying Agent and transfer agent of the Notes. The principal of and
interest on the Notes shall be payable at the office of the Paying Agent, which
shall initially be located in Chicago, Illinois.
8. The Notes shall be redeemable at any time in whole, or from
time to time in part, at a Redemption Price equal to the greater of (i) 100% of
the principal amount of the Notes being redeemed on the Redemption Date, and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes being redeemed on the Redemption Date (not
including any portion of any interest payments accrued to the Redemption Date)
discounted to the Redemption Date on a semi-annual basis at the Treasury Rate,
as determined by the Reference Treasury Dealer, plus 25 basis points plus, in
each case, accrued and unpaid interest on the Notes to the Redemption Date;
provided, however, that installments of interest on the Notes due on an Interest
Payment Date which occurs on or before any Redemption Date shall be payable to
the Holders of such Notes who were registered Holders as of the close of
business on the Record Date immediately preceding such Interest Payment Date.
The Redemption Price will be calculated on the basis of a 360-day year
consisting of twelve 30-day months. The Company will give notice of any
redemption at least 30 but not more than 90 days before the Redemption Date to
each registered Holder.
9. The Company will not, and will not permit any Subsidiary of
the Company to, at any time, directly or indirectly, create, assume, incur or
permit to exist any Indebtedness secured by a pledge, lien or other encumbrance
(any pledge, lien or other encumbrance being hereinafter referred to as a
"lien") on the Common Stock of any Designated Subsidiary without making
effective provision whereby the Notes then Outstanding (and, if the Company so
elects, any other Indebtedness of the Company that is not subordinate to the
Notes and with respect to which the governing instruments require, or pursuant
to which the Company is otherwise obligated or required, to provide such
security) shall be equally and ratably secured with such secured Indebtedness so
long as such other Indebtedness shall be secured.
If the Company shall be required to secure the Notes equally and
ratably with any other Indebtedness pursuant to this Officers' Certificate, (i)
the Company will promptly deliver to the Trustee an Officers' Certificate
stating that the foregoing covenant has been complied with, and an Opinion of
Counsel stating that, in the opinion of such counsel, the foregoing covenant has
been complied with and that any instruments executed by the Company or any
Subsidiary of the Company in the performance of the foregoing covenant comply
with the requirements of the foregoing covenant and (ii) the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the Holder of the Notes so secured.
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10. So long as any Notes are Outstanding and except in any
transaction otherwise permitted by the Indenture, the Company will not issue,
sell, transfer or otherwise dispose of (except to the Company, a Subsidiary,
which agrees in writing to hold such transferred shares subject to the terms of
this Officers' Certificate, or director's qualifying shares), and it will not
permit any Designated Subsidiary to issue, sell, transfer or otherwise dispose
of (except to the Company, a Subsidiary, which agrees in writing to hold such
transferred shares subject to the terms of this Officers' Certificate, or
director's qualifying shares), any shares of Common Stock of a Designated
Subsidiary (other than preferred stock having no voting rights of any kind,
except as required by law or in the event of non-payment of dividends) in each
case, if, after giving effect to any such transaction, the Company or such
Designated Subsidiary, as applicable, would own, directly or indirectly, less
than 80% of the shares of the Designated Subsidiary, unless, in each case, the
Common Stock of such Designated Subsidiary shall be issued, sold, transferred or
otherwise disposed of for a consideration consisting of cash or other property,
which, in the opinion of the Board of Directors of the Company pursuant to a
board resolution adopted in good faith, is at least equal to the fair value
thereof. Notwithstanding the foregoing, there is no prohibition on the issuance
or disposition of securities if required by any law or any regulation or order
of any court or governmental or insurance regulatory authority.
11. The terms defined below shall, for all purposes of the Notes
under the Indenture and this Officers' Certificate, have the meanings specified
below, unless the context clearly otherwise requires or unless otherwise
indicated:
"Common Stock" means, with respect to any Designated Subsidiary,
capital stock of any class or classes, however designated, except capital stock
that is non-participating beyond fixed dividend and liquidation preferences and
the holders of which have either no voting rights or limited voting rights, only
in the case of certain contingencies, to elect less than a majority of the
directors of such Designated Subsidiary, and shall include capital stock of any
class or classes, however designated, which are convertible into such common
stock.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Reference Treasury Dealer as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (a) the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest of the Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury
Dealer Quotations, or (C) if only one Reference Treasury Dealer Quotation is
received, such Reference Treasury Dealer Quotation.
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"Designated Subsidiary" means any present or future consolidated
Subsidiary of the Company, the consolidated shareholders' equity of which
constitutes at least 10% of the consolidated shareholders' equity of the
Company.
"Indebtedness" means, with respect to any Person, for purposes of
paragraph number 9 hereof:
- the principal of, and any premium and interest on, whether
outstanding on the date hereof or hereafter created, incurred or assumed, which
is (a) indebtedness of the Person for money borrowed and (b) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which that Person is responsible or liable;
- all capitalized lease obligations of that Person;
- all obligations of that Person issued or assumed as the
deferred purchase price of property, assets or businesses (except that the
deferred purchase price shall not be considered indebtedness if the purchase
price thereof is payable in full within 90 days from the date on which such
indebtedness was created);
- all obligations of that Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, other than obligations with respect to some letters of credit
securing obligations entered into in the ordinary course of business;
- all guarantees of that Person of obligations of
the type referred to above or dividends of other persons;
- all obligations of the type referred to above of third parties
secured by any lien on the Common Stock of our Designated Subsidiaries, the
amount of this obligation being deemed to be the lesser of the value of the
Common Stock of our Designated Subsidiaries or the amount of the obligation so
secured; and
- any amendments, modifications, refundings, renewals or
extensions or any indebtedness or obligation described above.
"Reference Treasury Dealer" means (a) Banc of America Securities
LLC (or its affiliates which are Primary Treasury Dealers) and its successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasure Dealer"),
another Primary Treasury Dealer may be substituted therefor by the Company; and
(B) any other Primary Treasury Dealer(s) selected by the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference
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Treasury Dealer at 5:00 p.m. (New York City time) on the third business day
preceding such Redemption Date.
"Subsidiary" means any entity of which more than 50% of the
interests entitled to vote in the election of directors, trustees or managers is
owned or controlled, directly or indirectly, by any combination of the Company
and its Subsidiaries.
"Treasury Rate" means, with respect to any Redemption Date, the
rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
12. The Notes shall not be subject to any sinking fund and shall
not be repurchasable at the option of any Holder.
13. The Notes shall not be convertible into other securities of
the Company or exchangeable for securities of another issuer.
14. Defeasance and covenant defeasance under Section 1302 and
Section 1303 of the Indenture shall be applicable to the Notes.
15. The Notes shall not be issuable upon the exercise of
warrants.
16. The Notes shall initially be issued in whole in the form of
one or more permanent Global Securities. The Depository Trust Company, a
clearing agency registered under the Securities Exchange Act of 1934, as amended
("DTC"), shall initially serve as the depositary for such Global Security or
Securities. For so long as DTC shall be the depositary, all Notes shall be
registered in its name or in the name of a nominee thereof. While the Notes are
evidenced by one or more Global Securities, the depositary or its nominee, as
the case may be, shall be the sole Holder thereof for all purposes under the
Indenture. Neither the Company nor the Trustee shall have any responsibility or
obligation to the depositary's participants or the beneficial owners for whom
they act with respect to their receipt from the depositary of payments on the
Notes or notices given under the Indenture. The Global Security or Securities
provided for hereunder shall bear such legend or legends as may be required from
time to time by the depositary.
17. Except as hereinafter described, Notes in definitive form
will not be issued. Notwithstanding the foregoing, in the event the Company
decides to discontinue the use of Global Securities, any Event of Default has
occurred and is continuing or if DTC is at any time unwilling, unable or
ineligible to continue as depositary and a successor depositary is not appointed
by the Company within 90 days, the Company will issue individual Notes in
certificated form to owners of "book-entry" ownership interests in exchange for
the Notes held by DTC or its nominee, as the case may be. In such instance, an
owner of a "book-entry" ownership interest will be entitled to physical delivery
of certificates equal in principal amount to such "book-entry" ownership
interest and to have such certificates registered in its name.
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Individual certificates so issued will be issued in denominations of $1,000 or
any multiple thereof.
18. Additional terms regarding the Notes are as set forth in the
form of the Notes set forth below.
19. The form of the Notes shall be substantially as follows:
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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
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Form of 7.25% Senior Notes due 2011
No. $_______________
MERCURY GENERAL CORPORATION
7.25% Senior Notes due 2011
CUSIP No.: 589400 AA 8
MERCURY GENERAL CORPORATION
promises to pay to CEDE & CO. (or registered assigns)
the principal sum of_________________________________________________
on August 15, 2011
Interest Payment Dates: February 15 and August 15
Regular Record Dates: February 1 and August 1
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MERCURY GENERAL CORPORATION
7.25% SENIOR NOTE DUE 2011
INTEREST. Mercury General Corporation, a California corporation (the
"Company"), promises to pay interest on the principal amount of this Security
(as defined herein) at the rate per annum shown above. The Company shall pay
interest semi-annually on February 15 and August 15 of each year, commencing
February 15, 2002. Interest on the Securities shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
August 7, 2001. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
METHOD OF PAYMENT. The Company shall pay interest on the Securities to
the persons who are registered holders of Securities at the close of business on
the Regular Record Date for the next Interest Payment Date, except as otherwise
provided in the Indenture. Holder must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payments of public and private debts. The Company may pay principal and interest
by check payable in such money. The Company may mail an interest check to a
Holder's registered address.
SECURITIES AGENTS. Initially, Bank One Trust Company, National
Association, shall act as Paying Agent, transfer agent and Security Registrar.
The Company may change any Paying Agent, transfer agent or Security Registrar
without notice. The Company or any Affiliate of the Company may act in any such
capacity. Subject to certain conditions, the Company may change the Trustee.
INDENTURE. The Company issued the securities of this series
(individually a "Security" and collectively, the "Securities") under an
Indenture, dated as of June 1, 2001 (the "Indenture"), between the Company and
Bank One Trust Company, National Association (the "Trustee"), as supplemented by
the Officers' Certificate, dated as of August 2, 2001 (the "Officers'
Certificate"), the terms of the Securities and those made part of the Indenture
by the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb). Holders
are referred to the Indenture, the above-referenced Officer's Certificate and
such act for a statement of such terms. All capitalized terms used but not
defined herein have the respective meanings ascribed thereto in the Indenture or
the Officers' Certificate.
MATURITY. The principal on the Securities shall be payable on August 15,
2011.
REDEMPTION PRIOR TO MATURITY. The Securities shall be redeemable at any
time in whole or from time to time in part at a Redemption Price equal to the
greater of (i) 100% of the principal amount of the Securities being redeemed on
Redemption Date, and or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the Securities being redeemed on
the Redemption Date (not including any potion of any interest payments accrued
to the Redemption Date) discounted to the Redemption Date on a semi-annual basis
at the Treasury Rate, as determined by the Reference Treasury Dealer, plus 25
basis points plus, in each case, accrued and unpaid interest on the Securities
to the Redemption Date; provided, however, that installments of interest on
Securities due on an Interest Payment Date which occurs on or before any
Redemption Date shall be payable to the Holders of such Securities who were
registered Holders as of the close of business on the Record Date immediately
preceding such Interest Payment Date. The Redemption Price will be calculated on
the basis of a 360-day year consisting of twelve 30-day months. The Company
shall give notice of any redemption of any Securities to Holders of the
Securities to be redeemed at the addresses of such
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Holders, as shown in the Security Register, not more than 90 nor less than 30
days prior to the Redemption Date. The notice of redemption will specify, among
other items, the Redemption Price and the aggregate principal amount of the
Securities to be redeemed. If less than all of the Outstanding Securities are to
be redeemed, then the Trustee shall select the Securities to be redeemed in
principal amounts of $1,000 or integral multiples of $1,000 by lot, pro rata or
by another method the Trustee considers fair and appropriate. 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
additional provisions with respect to any redemption of the Securities.
DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The transfer agent may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or the Indenture.
PERSONS DEEMED OWNERS. The registered holder of a Security may be
treated as its owner for all purposes.
AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or
the Securities may be amended with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series affected
by the amendment. Subject to certain exceptions, a default on a series may be
waived with the consent of the Holders of not less than a majority in principal
amount of the series.
Without the consent of any Holder, the Indenture or the Securities may
be amended to, among other things, cure any ambiguity or correct any omission,
defect or inconsistency; to provide for assumption of Company obligations to
Holders; or to make any change that does not materially adversely affect the
interests of any Holders of Securities then Outstanding.
LIMITATIONS ON DEBT. The Securities are unsecured general obligations of
the Company limited to $125,000,000 principal amount; provided, however, that
the Securities may be reopened for issuances of additional Securities in
accordance with the Indenture. The Indenture does not limit other unsecured
debt.
SUCCESSORS. When a successor assumes all of the obligations of the
Company under the Securities and the Indenture, the Company shall be released
from those obligations.
DEFEASANCE PRIOR TO MATURITY. Subject to certain conditions, the Company
at any time may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee U.S. dollars or U.S.
Government Obligations for the payment of principal of and interest on the
Securities to maturity.
DEFAULTS AND REMEDIES. An Event of Default includes: default for 30 days
in payment of interest on the Securities; default in payment of principal on the
Securities; default by the Company in the performance of any of its other
agreements applicable to the Securities that continues for 90 days after the
Company has been given notice of such default; and certain events of bankruptcy
or insolvency. If an Event of Default occurs and is continuing, the Trustee or
the Holders of not less
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than 25% in principal amount of the Outstanding Securities may declare the
principal of all the Securities to be due and payable immediately.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing default (except a default in
payment of principal or interest) if it in good faith determines that
withholding such notice is in their best interests.
TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from and perform services for
the Company or its Affiliates, and may otherwise deal with those persons, as if
it were not Trustee.
NO RECOURSE AGAINST OTHERS. Any incorporator, director or officer, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
AUTHENTICATION. This Security shall not be valid until authenticated by
a manual signature of the Trustee.
ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), U/G/M/A (=Uniform Gift to Minors Act) and
U/T/M/A (=Uniform Transfers to Minors Act).
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture and the Officer's Certificate, dated August 2,
2001, which contain the text of this Security. Requests may be made to:
Corporate Secretary, Mercury General Corporation, 4484 Wilshire Boulevard, Los
Angeles, California 90010.
All terms used in this Security, which are defined in the Indenture or
the Officers' Certificate, shall have the meanings assigned to them in the
Indenture or the Officers' Certificate.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
The Indenture and the Securities issued thereunder shall be governed by
and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to
be duly executed.
Dated as of the date of Authentication: MERCURY GENERAL CORPORATION
By
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By
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Bank One Trust Company, N.A.,
As Trustee
By:
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Authorized Signatory
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[FORM OF ASSIGNMENT FORM]
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. no.)
and irrevocably appoint____________________________________________as agent to
transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date:_______________, 20___ Your signature:______________________
______________________
(Sign exactly as your name appears on the face of this Security)
Signature Guaranteed:
______________________
* * *
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IN WITNESS WHEREOF, we have set our hands as of the day and year
first above written.
Dated: MERCURY GENERAL CORPORATION
By: /s/ George Joseph
---------------------------------
Chairman of the Board,
President and Chief Executive
Officer
By: /s/ Gabriel Tirador
---------------------------------
Vice President and Chief
Financial Officer