Exhibit No. 4(H)
SECOND SUPPLEMENTAL INDENTURE DATED FEBRUARY 26, 1999
between The Progressive Corporation
AND STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
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THE PROGRESSIVE CORPORATION
and
STATE STREET BANK AND TRUST COMPANY, AS
SUCCESSOR TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
6-5/8% Senior Notes due 2029
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of February 26, 1999, between THE
PROGRESSIVE CORPORATION, an Ohio corporation (the "ISSUER") and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company ("SSB"), in its capacity
as Successor Trustee.
W I T N E S S E T H:
WHEREAS, the Issuer entered into an Indenture, dated as of September 15, 1993
(as supplemented by the First Supplemental Indenture, dated as of March 15,
1996, the "INDENTURE"), with the First National Bank of Boston, in its capacity
as Trustee, pursuant to which the Issuer may from time to time issue its
unsecured debentures, notes and other evidences of indebtedness in one or more
series; and
WHEREAS, the Issuer entered into a Supplemental Indenture, dated as of March 15,
1996, confirming the succession of SSB as trustee under the Indenture; and
WHEREAS, Article Eight of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture; and
WHEREAS, Section 8.1(c) of the Indenture provides that the Issuer, when
authorized by its Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture supplemental to the Indenture to add on to
the covenants of the Issuer certain further covenants, restrictions, conditions
or provisions.
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NOW THEREFORE:
In consideration of the premises and other good and valuable consideration, the
parties hereto mutually covenant and agree as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01. Integral Part. This Second Supplemental Indenture constitutes an
integral part of the Indenture.
SECTION 1.02. General Definitions. For all purposes of this Second Supplemental
Indenture:
(a) capitalized terms used herein without definition shall have the meanings
specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise specified,
refer to the corresponding Articles and Sections of this Second Supplemental
Indenture; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of similar import
refer to this Second Supplemental Indenture.
SECTION 1.03. Definitions. The following definitions shall apply to this Second
Supplemental Indenture:
"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, the total assets appearing
on the consolidated balance sheet of the Issuer and its consolidated
subsidiaries as of the end of the then most recent fiscal quarter of the Issuer,
prepared in accordance with generally accepted accounting principles, less the
sum of (a) the total liabilities appearing on such balance sheet and (b)
intangible assets. "INTANGIBLE ASSETS" means, for the purposes of this
definition, the value, as shown on or reflected in such balance sheet, of (i)
all trade names, trademarks, licenses, patents, copyrights and goodwill, (ii)
organizational costs and (iii) unamortized debt discount and expense, less
unamortized premium.
"DESIGNATED SECURITIES" means the series of Securities designated by the Issuer
as its "6-5/8% Senior Notes due 2029".
"DESIGNATED SUBSIDIARY" means (i) Progressive Casualty Insurance Company, an
Ohio corporation, so long as it remains a subsidiary of the Issuer, (ii) any
other consolidated subsidiary of the Issuer the assets of which constitute 10%
or more of the Total Assets, and (iii) any subsidiary which is a successor to
all or substantially all of the business or properties of any such subsidiary.
"TOTAL ASSETS" means, at any date, the total assets appearing on the
consolidated balance sheet of the Issuer and its consolidated subsidiaries as of
the end of the then most recent fiscal quarter of the Issuer, prepared in
accordance with generally accepted accounting principles.
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ARTICLE 2
ADDITIONAL COVENANTS
SECTION 2.01. Limitation on Liens. The Issuer will not, nor will it permit any
Designated Subsidiary to, incur, issue, assume or guarantee any indebtedness for
money borrowed if (i) that indebtedness is secured by a pledge, mortgage, deed
of trust or other lien on any shares of stock or indebtedness of any Designated
Subsidiary (a "LIEN"), and (ii) the aggregate amount of the indebtedness so
secured exceeds an amount equal to 15% of the Issuer's Consolidated Tangible Net
Worth, unless the Designated Securities are also secured equally and ratably
with such other indebtedness. For purposes of this restriction, a "LIEN" will
not include the pledge to, or deposit with, any state or provincial insurance
regulatory authorities of any investment securities by the Issuer or any of its
subsidiaries.
The foregoing restriction shall not apply to indebtedness secured by:
(a) Liens on any shares of stock or indebtedness of or acquired from a
corporation merged or consolidated with or into, or otherwise acquired by, the
Issuer or a Designated Subsidiary;
(b) Liens to secure indebtedness of a Designated Subsidiary to the Issuer or to
another Designated Subsidiary, but only as long as such indebtedness is owned or
held by the Issuer or a Designated Subsidiary; and
(c) Any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any lien referred to in (a) and (b).
SECTION 2.02. Consolidation, Merger, Sale, Conveyance and Lease. The Issuer will
not consolidate or merge with or into any other Person or Persons, or sell,
convey or lease all or substantially all of its property to any other Person,
unless:
(a) the Person formed by such consolidation, or into which the Issuer is merged
or which acquires or leases all or substantially all of the property of the
Issuer, is a corporation or other entity organized under the laws of the United
States, any state thereof or the District of Columbia, and such Person expressly
assumes the Issuer's obligations under the Designated Securities and the
Indenture; and
(b) immediately after giving effect to the transaction, no Event of Default
exists.
This restriction shall not apply if the Issuer is the Person that survives any
such transaction.
In the event of a conflict between any provision in this Section and any
provision in Article 9 of the Indenture, Article 9 of the Indenture shall
govern.
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ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. Applicability of this Second Supplemental Indenture. The
provisions of this Second Supplemental Indenture will be applicable solely to
the Designated Securities.
SECTION 3.02. Adoption, Ratification and Confirmation. The Indenture, as
supplemented by this Second Supplemental Indenture, is in all respects hereby
adopted, ratified and confirmed.
SECTION 3.03. Counterparts. This Second Supplemental Indenture may be executed
in any number of counterparts, each of which when so executed shall be deemed an
original; and all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.04. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed and their respective corporate seals to be
hereunto fixed and attested as of the day and year first written above.
THE PROGRESSIVE CORPORATION
By:
W. Thomas Forrester
Treasurer
ATTEST:
By:
David M. Schneider
Secretary
STATE STREET BANK AND TRUST
COMPANY, AS SUCCESSOR TRUSTEE
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
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STATE OF OHIO
COUNTY OF CUYAHOGA
On this __th day of February, 1999, before me personally came W. Thomas
Forrester, to me personally known, who, being by me duly sworn, did depose and
say that he is a resident of Cuyahoga County, Ohio; that he is an officer of THE
PROGRESSIVE CORPORATION, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
Notary Public
My commission expires:
[Notarial Seal]
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this __th day of February, 1999, before me personally came
__________________, to me personally known, who, being by me duly sworn, did
depose and say that he is a resident of Bristol County, Massachusetts; that he
is an authorized officer of STATE STREET BANK AND TRUST COMPANY, one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said
instruments is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed her name thereto by
like authority.
Notary Public
My commission expires:
[Notary Seal]
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