As filed
with the Securities and Exchange Commission on June 18,
2007
Registration
No. 333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
THE
PROGRESSIVE CORPORATION
(Exact
name of registrant as specified in its charter)
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OHIO
(State or other
jurisdiction of
incorporation or organization)
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34-0963169
(I.R.S. Employer
Identification No.)
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6300
Wilson Mills Road
Mayfield
Village, Ohio 44143
(440) 461-5000
(Address,
including zip code, and telephone number, including area code,
of registrants principal executive offices)
Charles
E. Jarrett,
Secretary
The
Progressive Corporation
6300
Wilson Mills Road
Mayfield
Village, Ohio 44143
(440) 395-3696
(Name,
address, including zip code, and telephone number, including
area code, of agent for service)
Copies
to:
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R. Steven Kestner
Baker & Hostetler LLP
3200 National City Center
Cleveland, Ohio 44114
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Mark J. Welshimer
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
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Approximate
date of commencement of proposed sale to the
public:
From
time to time after this Registration Statement becomes effective.
If the only
securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please
check the following
box.
o
If any of
the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only
in connection with dividend or interest reinvestment plans,
check the following
box.
þ
If this Form
is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this Form
is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same
offering.
o
If this Form
is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this Form
is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box.
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering Price
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Aggregate
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Registration
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Securities to be Registered
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Registered
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Per Unit
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Offering Price
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Fee
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Senior Debt Securities
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(1
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(1
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(1
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(1
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Junior Subordinated Debt Securities
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(1
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(1
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(1
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(1
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(1)
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An
indeterminate aggregate initial offering price, amount and
number of debt securities is being registered as may from time
to time be issued at indeterminate prices. In accordance with
Rules 456(b) and 457(r) under the Securities Act of 1933, the
Registrant is deferring payment of all of the registration fee.
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PROSPECTUS
The Progressive Corporation
Senior Debt Securities
Junior Subordinated Debt Securities
By this prospectus, we may offer from time to time our notes,
debentures or other evidences of unsecured, senior indebtedness
(the senior debt securities) or unsecured, junior
subordinated indebtedness (the junior subordinated debt
securities), as further described in this prospectus. We
sometimes refer to the debt securities and the junior
subordinated debt securities together in this prospectus as the
debt securities or the securities.
We may offer debt securities in one or more series. This
prospectus describes some of the general terms that may apply to
those securities and the general way in which they may be
offered. We will specify the terms applicable to each series of
senior debt securities or junior subordinated debt securities,
as applicable, and the manner in which they will be offered, in
a supplement to this prospectus (a prospectus
supplement). We may not use this prospectus to sell senior
debt securities or junior subordinated debt securities unless
this prospectus is accompanied by a prospectus supplement. You
should read this prospectus and the applicable prospectus
supplement carefully before you invest.
Unless stated otherwise in this prospectus or the applicable
prospectus supplement, the securities will not be listed on any
securities exchange.
Our principal executive office is located at 6300 Wilson Mills
Road, Mayfield Village, Ohio 44143, and our telephone number is
(440) 461-5000.
Investing in our debt securities involves risks. See
Risk Factors on page 2 of this
prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is June 18, 2007.
TABLE OF
CONTENTS
ABOUT THIS
PROSPECTUS
This prospectus is a part of a registration statement that we
filed with the Securities and Exchange Commission
(SEC). Under the registration statement, we may
offer from time to time the senior debt securities or the junior
subordinated debt securities described in this prospectus. This
prospectus provides you with a general description of the debt
securities that we may offer. Our discussions of those
securities and certain related documents are summaries only and
are not necessarily complete. Each time we sell senior debt
securities or junior subordinated debt securities, we will
provide a prospectus supplement that will contain specific
information about the terms of the debt securities being
offered. The prospectus supplement may add, update or change
information contained in this prospectus.
This prospectus includes certain documents and information that
are incorporated by reference below, and it omits some of the
information contained in the registration statement and the
exhibits thereto. Before you invest, you should read this
prospectus, any prospectus supplement and the documents and
other information that are incorporated by reference into this
prospectus, together with the registration statement and the
documents that are attached to the registration statement as
exhibits. The documents and other information that are
incorporated by reference herein, as well as information about
how to obtain copies of the registration statement and related
documentation from us, can be found below under Where You
Can Find More Information.
When we use the terms Progressive, the
company, we, us or
our in this prospectus, we mean The Progressive
Corporation, and not any of its subsidiaries or mutual company
affiliate, unless we state or the context implies otherwise. The
terms subsidiaries in this prospectus includes both
our subsidiaries and our mutual company affiliate, unless we
state or the context implies otherwise.
No person has been authorized to give any information or to
make any representations not contained or incorporated by
reference into this prospectus in connection with any offering
made hereby, and if given or made, such information or
representations must not be relied upon. This prospectus does
not constitute an offer to sell or a solicitation of an offer to
buy any debt securities other than the registered securities to
which it relates. This prospectus also does not constitute an
offer to sell or a solicitation of an offer to buy any debt
securities in any jurisdiction in which such offer or
solicitation may not be legally made. The delivery of this
prospectus at any time does not imply that the information in
this prospectus is correct as of any time after the date
hereof.
1
RISK
FACTORS
Investing in our senior debt securities or our junior
subordinated debt securities involves risks. You should
carefully consider the risks described in any prospectus
supplement that we provide and in our filings with the SEC
referred to below in Where You Can Find More
Information, including, without limitation, our Annual
Report on
Form 10-K
for the year ended December 31, 2006, which includes a
Risk Factors discussion at Item 1A, beginning
on page 11 thereof. Our subsequent filings with the SEC may
contain amended and updated discussions of significant risks.
FORWARD-LOOKING
STATEMENTS
Under the Private Securities Litigation Reform Act of 1995,
statements in this prospectus and the documents incorporated by
reference that are not historical fact are forward-looking
statements that are subject to certain risks and uncertainties
that could cause actual events and results to differ materially
from those discussed herein. These risks and uncertainties
include, without limitation:
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uncertainties related to estimates, assumptions and projections
generally;
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inflation and changes in economic conditions (including changes
in interest rates and financial markets);
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the accuracy and adequacy of our pricing and loss reserving
methodologies;
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the competitiveness of our pricing and the effectiveness of our
initiatives to retain more customers;
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initiatives by competitors and the effectiveness of our response;
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our ability to obtain regulatory approval for requested rate
changes and the timing thereof;
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the effectiveness of our brand strategy and advertising
campaigns relative to those of competitors;
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legislative and regulatory developments;
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disputes relating to intellectual property rights;
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the outcome of litigation pending or that may be filed against
us;
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weather conditions (including the severity and frequency of
storms, hurricanes, snowfalls, hail and winter conditions);
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changes in driving patterns and loss trends;
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acts of war and terrorist activities;
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our ability to maintain the uninterrupted operation of our
facilities, systems (including information technology systems)
and business functions;
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court decisions and trends in litigation and health care and
auto repair costs; and
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other matters described from time to time in our releases and
publications, and in our periodic reports and other documents
filed with the SEC.
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In addition, investors should be aware that generally accepted
accounting principles prescribe when a company may reserve for
particular risks, including litigation exposures. Accordingly,
results for a given reporting period could be significantly
affected if and when a reserve is established for one or more
contingencies. Reported results, therefore, may appear to be
volatile in certain accounting periods.
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THE PROGRESSIVE
CORPORATION
In this section only, when we use the terms
Progressive
, the
company
,
we
,
us or
our
, we mean
The Progressive Corporation and its subsidiaries, on a
consolidated basis, unless we state or the context implies
otherwise.
The Progressive insurance organization began business in 1937.
The Progressive Corporation, an insurance holding company formed
in 1965, currently has 67 subsidiaries and one mutual insurance
company affiliate (collectively, the subsidiaries).
Our insurance subsidiaries provide personal and commercial
automobile insurance and other specialty property-casualty
insurance and related services throughout the United States. We
maintain geographic diversity in our insurance underwriting
business, writing personal auto policies in 49 states and the
District of Columbia and commercial auto policies in 49 states.
Our subsidiaries property-casualty insurance products
protect our customers against collision and physical damage to
their motor vehicles, uninsured and underinsured bodily injury,
and liability to others for personal injury or property damage
arising out of the use of those vehicles. Our non-insurance
subsidiaries generally support our insurance and investment
operations. Our business operations include the following:
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Our Personal Lines Business includes private passenger
automobile insurance and specialty products, such as insurance
for motorcycles, recreational vehicles, mobile homes, watercraft
and snowmobiles. The Personal Lines business either is generated
by independent agents and brokers or is written directly by us
over the Internet or by phone.
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The Commercial Auto Business writes primary liability and
physical damage insurance for automobiles and trucks owned by
small businesses and is primarily distributed through the
independent agency channel. This business operates in the
specialty truck and light and local commercial auto markets.
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Other indemnity businesses include providing professional
liability insurance to community banks, principally directors
and officers liability insurance, and managing our run-off
businesses.
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Our service businesses include providing insurance-related
services, primarily policy issuance and claims adjusting
services in 25 states for Commercial Auto Insurance
Procedures/Plans (CAIP), which are state-supervised plans
serving the involuntary markets.
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We manage insurance claims through approximately 475 claims
offices located throughout the United States. In addition, we
have in operation 54 service centers, in 41 metropolitan areas
across the country, that provide concierge-level claims service,
which are designed to provide
end-to-end
resolution for physical damage losses.
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Our investment group employs what management believes is a
conservative approach to investment and capital management
intended to ensure that we have sufficient capital to support
all of the insurance premiums that we can profitably write. Our
portfolio is invested primarily in short-term and
intermediate-term, investment-grade fixed-income securities.
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Progressives insurance businesses operate in a highly
regulated environment. Our insurance subsidiaries are subject to
regulation and supervision by state insurance departments in all
50 states and the District of Columbia, each of which has a
unique and complex set of laws and regulations. State insurance
departments have broad administrative power relating to
licensing insurers, agents and adjusters, regulating premium
changes and policy forms, establishing reserve requirements,
prescribing statutory accounting methods and the form and
content of statutory financial reports, and regulating the type
and amount of investments permitted. In addition, insurance
statutes or regulations in many states limit the extent to which
insurance companies may pay dividends and transfer assets to
their affiliates (including a parent company) and either
prohibit, or require prior regulatory approval for, the payment
of dividends and other distributions in excess of such limits.
As a holding company
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with no business operations of its own, The Progressive
Corporation relies on dividends from our subsidiaries as the
principal source of funding to meet our financial obligations,
including obligations to make payments on any senior debt
securities or junior subordinated debt securities issued under
this prospectus and the holding companys other
indebtedness.
Additional information about The Progressive Corporation and its
subsidiaries can be found in our documents filed with the SEC,
which are incorporated herein by reference, as provided below in
Where You Can Find More Information. Our Web site is
www. progressive.com. Information on our Web site does not
constitute part of this prospectus.
WHERE YOU CAN
FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You can read and copy our
reports, proxy statements and other information at the
SECs Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330.
We also file documents electronically with the
SEC. The SEC maintains a Web site that contains
reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC. The
address of this Web site is http://www.sec.gov.
Our Common Shares are traded on the New York Stock Exchange
under the symbol PGR. You may inspect the reports,
proxy statements and other information concerning us at the
offices of the New York Stock Exchange, 11 Wall Street, New
York, New York 10005.
The SEC allows us to incorporate by reference information in
other documents that we have filed with the SEC. This permits us
to disclose information to you by referencing these filed
documents. Information incorporated by reference is an important
part of this prospectus, and information that we file later with
the SEC will automatically update and supersede such
information. Information furnished under the applicable items in
our Current Reports on
Form 8-K
is not incorporated by reference, unless specifically stated in
a prospectus supplement. We incorporate the following filed
documents by reference:
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Our Annual Report on
Form 10-K
for the year ended December 31, 2006 (filed on
February 28, 2007).
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Our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2007 (filed on May 3,
2007).
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Our Current Reports on
Form 8-K
(filed on: February 8, 2007; March 6, 2007;
March 26, 2007; and April 20, 2007).
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Our future filings under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 which are made with the
SEC prior to the termination of this offering, as of the date of
the filing of each such document.
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We will furnish without charge to each person (including any
beneficial owner) to whom a prospectus is delivered, upon
written or oral request, a copy of any or all of the foregoing
documents incorporated herein by reference (including any
exhibits that are specifically incorporated by reference into
the requested document). Requests for such documents should be
directed to: Jeffrey W. Basch, Chief Accounting Officer, The
Progressive Corporation, 6300 Wilson Mills Road, Mayfield
Village, Ohio 44143, or call:
(440) 446-2851.
4
RATIO OF EARNINGS
TO FIXED CHARGES
The following table represents the ratio of earnings to fixed
charges of Progressive and its subsidiaries on a consolidated
basis for the periods shown:
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Three Months
Ended
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March
31,
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Year Ended
December 31,
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2007
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2006
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2006
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2005
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2004
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2003
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2002
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Ratio of Earnings to Fixed Charges
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22.0x
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25.5x
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24.7x
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21.3x
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27.1x
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18.8x
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13.2x
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Earnings consist of income before income taxes, less capitalized
interest, plus fixed charges and the amortization of capitalized
interest. Fixed charges consist of interest and amortization on
indebtedness, and the portion of rents representative of the
interest factor.
USE OF
PROCEEDS
Except as may be otherwise provided in an applicable prospectus
supplement, we will use the net proceeds of the sale of debt
securities for general corporate purposes.
5
DESCRIPTION OF
SENIOR DEBT SECURITIES AND
JUNIOR SUBORDINATED DEBT SECURITIES
Debt Securities
and Indentures
We may offer senior debt securities or junior subordinated debt
securities from time to time under this prospectus. We will set
forth a description of the debt securities that may be offered
under this prospectus in a prospectus supplement or other
offering material.
We will issue debt securities under one or more indentures, each
dated as of a date on or before the issuance of the debt
securities to which it relates. Each indenture will be entered
into between us and a trustee chosen by us and qualified to act
as a trustee under the Trust Indenture Act of 1939. The
statements and descriptions in this prospectus, in any
prospectus supplement or in any other offering material
regarding provisions of an indenture or securities being offered
are summaries only and do not purport to be complete. Such
statements and descriptions are subject to, and are qualified in
their entirety by reference to all of the provisions of the
applicable indenture (and any amendments or supplements we may
enter into from time to time which are permitted under such
indenture) and all of the provisions of the applicable senior
debt securities or junior subordinated debt securities.
Unless we specify otherwise in the applicable prospectus
supplement, senior debt securities will be offered under the
senior indenture that is filed as Exhibit 4.1 to the
registration statement (including amendments to such
registration statement) of which this prospectus is a part,
subject to any amendments or supplements to such indenture as we
may adopt from time to time, and U.S. Bank National Association
(as successor in interest to State Street Bank and
Trust Company) will act as trustee. See Where You Can
Find More Information for information on how to obtain
copies of that indenture.
Junior subordinated debt securities will be offered under a
junior subordinated indenture to be entered into prior to
offering such junior subordinated debt securities between us and
The Bank of New York Trust Company, N.A., and any
amendments or supplements to that indenture. Important terms
from the junior subordinated indenture will be included in the
applicable prospectus supplement for that offering. See
Where You Can Find More Information for information
on how to obtain copies of that indenture when it is entered
into.
The trustee under each indenture performs various roles. Among
the trustees more significant roles, the trustee can
enforce your rights against us if we default under certain
circumstances. There are some limitations on the extent to which
the trustee acts on your behalf, which will be described in the
relevant prospectus supplement.
In addition, the trustee may act in the capacities of paying
agent and securities registrar, performing administrative duties
for us, such as sending you interest payments, transferring your
securities to a new buyer if you sell, and sending you notices,
as described below.
Both indentures, and all securities, will be governed by New
York law.
Because this section is a summary, it does not describe every
aspect of the securities or the indentures. This summary is
subject to and qualified in its entirety by reference to all the
provisions of the relevant security and indenture, including
definitions of certain terms used in the applicable indenture.
This summary also is subject to and qualified by reference to
the description of the particular terms of your series described
in the relevant prospectus supplement.
Global
Securities
A global security is a special type of indirectly held security.
If we choose to issue securities in the form of global
securities, the ultimate beneficial owners can only be indirect
holders. We do this by requiring that the global security be
registered in the name of a financial institution we select and
by requiring that the securities included in the global security
not be transferred to the name of any other
6
direct holder unless the special circumstances described below
occur. The financial institution that acts as the sole direct
holder of the global security is called the
depositary. Any person wishing to own a security
must do so indirectly by virtue of an account with a broker,
bank or other financial institution that in turn has an account
with the depositary. The prospectus supplement will indicate
whether your series of securities will be issued only in the
form of global securities.
As an indirect holder, an investors rights relating to a
global security will be governed by the account rules of the
investors financial institution and of the depositary, as
well as general laws relating to securities transfers. We do not
recognize this type of investor as a holder of securities and
instead deal only with the depositary that holds the global
security. As a result, the investor cannot have securities
registered in his or her own name or receive physical
certificates for his or her interest in the securities, and
certain other limitations may apply. The depositarys
policies will govern payments, transfers, exchange and other
matters relating to the investors interest in the global
security. We and the trustee have no responsibility for any
aspect of the depositarys actions or for its records of
ownership interests in the global security. We and the trustee
also do not supervise the depositary in any way.
In a few special situations described below, the global security
will terminate and interests in it will be exchanged for
physical certificates representing securities. After that
exchange, the choice of whether to hold securities directly or
in Street Name will be up to the investor, who must
consult his or her own bank or broker to find out how to have
his or her interests in securities transferred to the
investors own name, so that he or she will be a direct
holder. The special situations for termination of a global
security are:
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When the depositary notifies us that it is unwilling, unable or
no longer qualified to continue as depositary, and no other
financial institution is designated by us to succeed it as the
depositary.
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When an event of default on the securities has occurred and has
not been cured. Defaults will be discussed in the relevant
prospectus supplement.
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The prospectus supplement may also list additional situations
for terminating a global security that would apply only to the
particular series of securities covered by the relevant
prospectus supplement. When a global security terminates, the
depositary (and not we or the trustee) is responsible for
deciding the names of the institutions that will be the initial
direct holders.
In the remainder of this description, you means
direct holders of the securities and not Street Name
or other indirect holders of securities.
Form, Exchange
and Transfer
The securities will be issued either in registered form or in
unregistered form with interest coupons, if applicable.
You may have your securities broken into more securities of
smaller denominations or combined into fewer securities of
larger denominations, as long as the total principal amount is
not changed. This is called an exchange. You may
exchange or transfer securities at the office of the trustee.
The trustee acts as our agent for registering securities in the
names of holders and registering the transfer of securities. We
may change this appointment to another entity or perform it
ourselves. The entity performing the role of maintaining the
list of registered holders and registering transfers is called
the security registrar.
You will not be required to pay a service charge to transfer or
exchange securities, but you may be required to pay for any tax
or other governmental charge associated with the exchange or
transfer. The transfer or exchange will only be made if the
security registrar is satisfied with your proof of ownership.
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If we have designated additional transfer agents, they will be
named in the prospectus supplement. We may cancel the
designation of any particular transfer agent at any time. We may
also approve a change in the office through which any transfer
agent acts.
Payment and
Paying Agents
We will pay interest to you if you are a direct holder listed in
the trustees records at the close of business on a
particular day in advance of each due date for interest, even if
you no longer own the security on the interest due date. That
particular day, usually about two weeks in advance of the
interest due date, is known as the record date and
will be identified in the relevant prospectus supplement.
Holders buying and selling securities must work out between them
how to compensate for the fact that we will pay all the interest
for an interest period to the one who is the registered holder
on the relevant record date.
We will pay interest, principal and any other money due on the
securities at the corporate trust office of the relevant
trustee. You must make arrangements to have your payments picked
up at or wired from that office. We may also choose to pay
interest by mailing checks.
We also may arrange for additional payment offices, and may
cancel or change these offices, including our use of the
trustees corporate trust office. These offices are called
paying agents. We may also choose to act as our own
paying agent.
Notices
We and the particular trustee will send notices regarding the
securities only to direct holders, using their addresses as
listed in the trustees records.
Regardless of who acts as paying agent, all money paid by us to
a paying agent that remains unclaimed at the end of two years
after the amount is due to direct holders will be repaid to us.
After that two-year period, you may look only to us for payment
and not to the trustee, any other paying agent or anyone else.
PLAN OF
DISTRIBUTION
We may sell the senior debt securities and junior subordinated
debt securities being offered under this prospectus through
agents, underwriters, or dealers, or we may sell debt securities
directly to one or more purchasers, or through a combination of
any such methods of sale. The prospectus supplement for a
particular offering of securities will set forth the terms of
the offering of such securities, including the name or names of
the specific agents, dealers or underwriters (including managing
underwriters, if any), the purchase price and the proceeds to us
from such sales, any underwriting discounts, agency fees or
commissions and other items constituting compensation to the
underwriters, agents or dealers, the initial public offering
price, any discounts or concessions to be allowed or reallowed
or paid to dealers, the securities exchange, if any, on which
such securities may be listed, and the place and time of
delivery of the securities offered.
Securities may be offered and sold through agents that we may
designate from time to time. Unless otherwise indicated in the
applicable prospectus supplement, any such agent will be acting
on a best efforts basis for the period of its appointment. Any
such agent may be deemed to be an underwriter, as that term is
defined in the Securities Act of 1933 (the Securities
Act), of any senior debt securities or junior subordinated
debt securities so offered and sold. Agents may be entitled
under agreements which may be entered into with us to
indemnification by us against certain liabilities, including
liabilities under the Securities Act, and may be customers of,
engage in transactions with, or perform services for us in the
ordinary course of business.
8
If we use an underwriter or underwriters in the sale of any debt
securities, we will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such
sale is reached. Such underwriter or underwriters will acquire
the securities for their own account and may resell such
securities from time to time in one or more transactions,
including negotiated transactions, at fixed public offering
prices or at varying prices determined at the time of sale.
Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or
by underwriters without a syndicate. The underwriters may be
entitled, under the relevant underwriting agreement, to
indemnification by us against certain liabilities, including
liabilities under the Securities Act. If any underwriter or
underwriters are utilized in the sale of any debt securities,
unless otherwise set forth in the applicable prospectus
supplement, the underwriting agreement will provide that the
obligations of the underwriters will be subject to certain
conditions precedent and that the underwriters with respect to a
sale of such securities will be obligated to purchase all such
securities if any are purchased.
If a dealer is utilized in the sale of any senior debt
securities or junior subordinated debt securities under this
prospectus, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the
public at varying prices to be determined by such dealer at the
time of resale. Any such dealer may be deemed to be an
underwriter, as such term is defined in the Securities Act, of
the debt securities so offered and sold. Dealers may be
entitled, under agreements which may be entered into with us, to
indemnification by us against certain liabilities, including
liabilities under the Securities Act. The name of any such
dealer and the terms of the transaction will be set forth in the
applicable prospectus supplement.
If the applicable prospectus supplement indicates, we will
authorize underwriters or our other agents to solicit offers by
certain institutions to purchase debt securities from us
pursuant to contracts that provide for payment and delivery on a
future date. We must approve all institutions, but they may
include, among others:
|
|
|
|
|
commercial and savings banks;
|
|
|
|
insurance companies;
|
|
|
|
pension funds;
|
|
|
|
investment companies; and
|
|
|
|
educational and charitable institutions.
|
The institutional purchasers obligations under the
contract are subject to the condition that the purchase of the
debt securities at the time of delivery is allowed by the laws
that govern the purchaser. The underwriters and other agents
will not be responsible for the validity or performance of the
contracts.
Offers to purchase senior debt securities or junior subordinated
debt securities may be solicited directly by us, and sales of
such securities may be made by us directly to institutional
investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any sale
thereof. The terms of any such sales will be described in the
applicable prospectus supplement.
The place and time of delivery of the applicable debt securities
will be set forth in an accompanying prospectus supplement.
9
LEGAL
MATTERS
Unless otherwise indicated in a prospectus supplement relating
to the debt securities, certain legal matters in connection with
the securities will be passed upon for Progressive by
Baker & Hostetler LLP, Cleveland, Ohio.
EXPERTS
The consolidated financial statements and financial statement
schedules of The Progressive Corporation and subsidiaries as of
December 31, 2006 and 2005, and for each of the three years
in the period ended December 31, 2006, and
managements report on the effectiveness of internal
control over financial reporting, all incorporated by reference
in the registration statement of which this prospectus forms a
part, have been incorporated herein in reliance on the reports
of PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of that firm as experts
in accounting and auditing.
10
PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other Expenses
of Issuance and Distribution.
|
All fees and expenses are estimated:
|
|
|
|
|
Registration Fee
Securities and Exchange Commission
|
|
$
|
*
|
|
Trustees Fees and Expenses
|
|
|
20,000
|
|
Accounting Fees and Expenses
|
|
|
50,000
|
|
Legal Fees and Expenses
|
|
|
250,000
|
|
Blue Sky Fees and Expenses
(including related fees and expenses of counsel)
|
|
|
10,000
|
|
Printing Expenses
|
|
|
10,000
|
|
Rating Agency Fees
|
|
|
1,000,000
|
|
Miscellaneous Expenses
|
|
|
5,000
|
|
|
|
|
|
|
Total
|
|
$
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Deferred in accordance with Rules 456(b) and 457(r) of the
Securities Act of 1933, as amended.
|
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
Article VI of the Code of Regulations of Progressive
provides for indemnification of any director, officer or
employee in certain instances, as permitted under
Section 1701.13(E) of the Ohio Revised Code, against
expenses, judgments, decrees, fines, penalties or amounts paid
in settlement in connection with the defense of any action, suit
or proceeding, criminal or civil, to which he or she was, is or
may be a party by reason of his or her status as such director,
officer or employee.
A director, officer or employee is entitled to indemnification
if he or she is successful on the merits or otherwise in the
defense of any such action, suit or proceeding or if a
determination is made pursuant to Article VI of the Code of
Regulations (1) by the directors of Progressive acting at a
meeting at which a quorum consisting of directors who neither
were nor are parties to or threatened with any such action, suit
or proceeding is present or (2) by our shareholders at a
meeting held for such purpose by the affirmative vote of the
holders of shares entitling them to exercise a majority of the
voting power of Progressive on such proposal or without a
meeting by the written consent of the holders of shares
entitling them to exercise two-thirds of such voting power on
such proposal, that such director, officer or employee
(a) was not, and has not been adjudicated to have been,
negligent or guilty of misconduct in the performance of his or
her duty to us, (b) acted in good faith and in a manner he
or she reasonably believed to be in the best interest of
Progressive and (c) in any matter which is the subject of a
criminal action, suit or proceeding, had no reasonable cause to
believe that his or her conduct was unlawful.
The expenses of each director, officer or employee incurred in
defending any such action, suit or proceeding, whether
threatened or actual, may be paid by us as they are incurred in
advance of the final disposition of such action, suit or
proceeding, as authorized by the Board of Directors in the
specific case, upon receipt of an undertaking by the director,
officer or employee to repay such expenses unless it shall
ultimately be determined that he or she is entitled to be
indemnified by us.
Additionally, Section 1701.13(E)(5)(a) of the Ohio Revised
Code provides that, unless prohibited by specific reference in a
corporations articles of incorporation or code of
regulations (which prohibition is not contained in our Articles
of Incorporation or Code of Regulations), a corporation shall
pay a directors expenses, including attorneys fees,
as such expenses are incurred, in defending an action, suit or
proceeding brought against a director in such capacity, whether
such action, suit or proceeding is brought by a third party or
by or in the right of the corporation, provided the director
delivers to the corporation an undertaking to (a) repay
such amount if it is proved by clear and convincing evidence in
a court of competent jurisdiction that his or her action or
failure to act was
II-1
undertaken with deliberate intent to injure the corporation or
with reckless disregard for the best interests of the
corporation and (b) reasonably cooperate with the
corporation in such action, suit or proceeding.
Section 1701.13(E)(7) of the Ohio Revised Code provides
that a corporation may purchase insurance or furnish similar
protection for any director, officer or employee against any
liability asserted against him or her in any such capacity,
whether or not the corporation would have power to indemnify him
or her under Ohio law. Such insurance may be purchased from or
maintained with a person in which the corporation has a
financial interest.
We maintain directors and officers liability insurance in the
aggregate amount of $25,000,000 under policies issued by
unaffiliated insurance companies. The risks covered by such
policies include certain liabilities under the securities laws.
See the proposed form of Underwriting Agreement to be filed as
an amendment or as an exhibit to a document incorporated by
reference into this registration statement for certain
provisions relating to indemnification of us and our directors
and officers.
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
|
|
Proposed Form of Underwriting
Agreement*
|
|
4
|
.1
|
|
Indenture between the Registrant
and The First National Bank of Boston, Trustee, dated as of
September 15, 1993 (the Senior Indenture);
incorporated by reference to Exhibit 4.1 of the
Companys Registration Statement
No. 333-48935
(filed with the SEC on March 31, 1998)
|
|
4
|
.2
|
|
First Supplemental Indenture dated
March 15, 1996, between the Registrant and State Street
Bank and Trust Company, evidencing the designation of State
Street Bank and Trust Company as successor Trustee under
the Senior Indenture; incorporated by reference to
Exhibit 4.2 of the Companys Registration Statement
No. 333-01745
(filed with the SEC on March 15, 1996)
|
|
4
|
.3
|
|
Second Supplemental Indenture
dated February 26, 1999, between the Registrant and State
Street Bank and Trust Company; incorporated by reference to
Exhibit 4.3 of the Companys Registration Statement
No. 333-100674
(filed with the SEC on October 22, 2002)
|
|
4
|
.4
|
|
Third Supplemental Indenture dated
December 7, 2001, between the Registrant and State Street
Bank and Trust Company; incorporated by reference to
Exhibit 4.4 of the Companys Registration Statement
No. 333-100674
(filed with the SEC on October 22, 2002)
|
|
4
|
.5
|
|
Fourth Supplemental Indenture
dated November 21, 2002, between the Registrant and State
Street Bank and Trust Company**
|
|
4
|
.6
|
|
Fifth Supplemental Indenture dated
June 13, 2007, between the Registrant and U.S. Bank
National Association, evidencing the designation of U.S. Bank
National Association as successor Trustee under the Senior
Indenture**
|
|
4
|
.7
|
|
Form of Senior Debt Security;
incorporated by reference to Exhibit 4.5 of the
Companys Registration Statement
No. 333-100674
(filed with the SEC on October 22, 2002)
|
|
4
|
.8
|
|
Form of Junior Subordinated
Indenture**
|
|
4
|
.9
|
|
Form of Junior Subordinated Debt
Security*
|
|
5
|
|
|
Opinion of Baker &
Hostetler LLP regarding the legality of the debt securities
being registered
**
|
|
8
|
|
|
Opinion of Baker &
Hostetler LLP regarding certain tax matters*
|
|
12
|
|
|
Computation of Ratio of Earnings
to Fixed Charges**
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers
LLP**
|
|
23
|
.2
|
|
Consent of Baker &
Hostetler LLP (included in Exhibit 5** and 8*)
|
II-2
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
24
|
.1
|
|
Power of Attorney**
|
|
24
|
.2
|
|
Certified resolution of Board of
Directors authorizing the signing on behalf of Progressive
pursuant to a power of attorney**
|
|
25
|
.1
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939 of U.S. Bank National Association**
|
|
25
|
.2
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York Trust Company, N.A.**
|
|
|
|
*
|
|
To be filed by amendment or as an exhibit to a document
incorporated by reference into the registration statement.
|
|
**
|
|
Filed herewith.
|
The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(A) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(B) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and
(C) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however
, that paragraphs (A), (B) and
(C) do not apply if the registration statement is on
Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement;
(2) that, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof;
(3) to remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering;
(4) that, for the purpose of determining liability
under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the Registrant pursuant
to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
II-3
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(l)(i), (vii) or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however,
that no statement made in a registration statement or
prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date; and
(5) that, for the purpose of determining liability of
the Registrant under the Securities Act of 1933 to any purchaser
in the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(A) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(B) Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned Registrant
or used or referred to by the undersigned Registrant;
(C) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of an undersigned Registrant; and
(D) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a
II-4
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Mayfield Village, State of Ohio, on June 18, 2007.
THE PROGRESSIVE CORPORATION
|
|
|
|
By:
|
/s/ Charles
E. Jarrett
|
Charles E. Jarrett, Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacity(ies) indicated on June 18, 2007.
|
|
|
|
|
Signature
|
|
Title
|
|
/s/ Glenn
M. Renwick
Glenn
M. Renwick
|
|
President, Chief Executive Officer
and Director (Principal Executive Officer)
|
/s/ Brian
C. Domeck
Brian
C. Domeck
|
|
Vice President and Chief Financial
Officer (Principal Financial Officer)
|
/s/ Jeffrey
W. Basch
Jeffrey
W. Basch
|
|
Vice President and Chief
Accounting Officer (Principal Accounting Officer)
|
*
Peter
B. Lewis
|
|
Chairman and Director
|
*
Charles
A. Davis
|
|
Director
|
*
Stephen
R. Hardis
|
|
Director
|
*
Bernadine
P. Healy, M.D.
|
|
Director
|
*
Jeffrey
D. Kelly
|
|
Director
|
*
Abby
F. Kohnstamm
|
|
Director
|
*
Phillip
A. Laskawy
|
|
Director
|
*
Norman
S. Matthews
|
|
Director
|
*
Patrick
H. Nettles, Ph.D.
|
|
Director
|
*
Donald
B. Shackelford
|
|
Director
|
*
Bradley
T. Sheares, Ph.D.
|
|
Director
|
|
|
|
*
|
|
Charles E. Jarrett, by signing his name hereto, does sign this
Registration Statement on behalf of the persons indicated above
pursuant to powers of attorney duly executed by such persons
filed as an Exhibit to the Registration Statement.
|
|
|
By:
|
/s/ Charles
E. Jarrett
|
Charles E. Jarrett,
Attorney-in-Fact
II-6
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
|
|
Proposed Form of Underwriting
Agreement*
|
|
4
|
.1
|
|
Indenture between the Registrant
and The First National Bank of Boston, Trustee, dated as of
September 15, 1993 (the Senior Indenture);
incorporated by reference to Exhibit 4.1 of the
Companys Registration Statement
No. 333-48935
(filed with the SEC on March 31, 1998)
|
|
4
|
.2
|
|
First Supplemental Indenture dated
March 15, 1996, between the Registrant and State Street
Bank and Trust Company, evidencing the designation of State
Street Bank and Trust Company as successor Trustee under
the Senior Indenture; incorporated by reference to
Exhibit 4.2 of the Companys Registration Statement
No. 333-01745
(filed with the SEC on March 15, 1996)
|
|
4
|
.3
|
|
Second Supplemental Indenture
dated February 26, 1999, between the Registrant and State
Street Bank and Trust Company; incorporated by reference to
Exhibit 4.3 of the Companys Registration Statement
No. 333-100674
(filed with the SEC on October 22, 2002)
|
|
4
|
.4
|
|
Third Supplemental Indenture dated
December 7, 2001, between the Registrant and State Street
Bank and Trust Company; incorporated by reference to
Exhibit 4.4 of the Companys Registration Statement
No. 333-100674
(filed with the SEC on October 22, 2002)
|
|
4
|
.5
|
|
Fourth Supplemental Indenture
dated November 21, 2002, between the Registrant and State
Street Bank and Trust Company**
|
|
4
|
.6
|
|
Fifth Supplemental Indenture dated
June 13, 2007, between the Registrant and U.S. Bank
National Association, evidencing the designation of U.S. Bank
National Association as successor Trustee under the Senior
Indenture**
|
|
4
|
.7
|
|
Form of Senior Debt Security;
incorporated by reference to Exhibit 4.5 of the
Companys Registration Statement
No. 333-100674
(filed with the SEC on October 22, 2002)
|
|
4
|
.8
|
|
Form of Junior Subordinated
Indenture**
|
|
4
|
.9
|
|
Form of Junior Subordinated Debt
Security*
|
|
5
|
|
|
Opinion of Baker &
Hostetler LLP regarding the legality of the debt securities
being registered
**
|
|
8
|
|
|
Opinion of Baker &
Hostetler LLP regarding certain tax matters*
|
|
12
|
|
|
Computation of Ratio of Earnings
to Fixed Charges**
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers
LLP**
|
|
23
|
.2
|
|
Consent of Baker &
Hostetler LLP (included in Exhibit 5** and 8*)
|
|
24
|
.1
|
|
Power of Attorney**
|
|
24
|
.2
|
|
Certified resolution of Board of
Directors authorizing the signing on behalf of Progressive
pursuant to a power of attorney**
|
|
25
|
.1
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939 of U.S. Bank National Association**
|
|
25
|
.2
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York Trust Company, N.A.**
|
|
|
|
*
|
|
To be filed by amendment or as an exhibit to a document
incorporated by reference into the registration statement.
|
|
**
|
|
Filed herewith.
|
Exhibit 4.8
THE PROGRESSIVE CORPORATION
AND
THE BANK OF NEW YORK TRUST COMPANY,
N.A.,
Trustee
Junior Subordinated Indenture
Dated as of June
, 2007
CROSS-REFERENCE SHEET
1
*
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of June , 2007 between
THE PROGRESSIVE CORPORATION and THE BANK OF NEW YORK TRUST COMPANY, N.A., Trustee:
|
|
|
|
|
Section of the Act
|
|
Section of Indenture
|
310(a)(1) and (2)
|
|
|
|
6.8
|
310(a)(3) and (4)
|
|
|
|
Inapplicable
|
310(a)(5)
|
|
|
|
6.8
|
310(b)
|
|
|
|
6.9(a), (b) and (d)
|
310(b)(1)
|
|
|
|
6.13
|
310(c)
|
|
|
|
Inapplicable
|
311(a)
|
|
|
|
6.12
|
311(b)
|
|
|
|
6.12
|
311(c)
|
|
|
|
Inapplicable
|
312(a)
|
|
|
|
4.1 and 4.2(a)
|
312(b)
|
|
|
|
4.2(a) and (b)(i) and (ii)
|
312(c)
|
|
|
|
4.2(c)
|
313(a)
|
|
|
|
4.4
|
313(b)(1)
|
|
|
|
Inapplicable
|
313(b)(2)
|
|
|
|
4.4
|
313(c)
|
|
|
|
4.4
|
313(d)
|
|
|
|
4.4
|
314(a)
|
|
|
|
4.3
|
314(b)
|
|
|
|
Inapplicable
|
314(c)(1) and (2)
|
|
|
|
11.5
|
314(c)(3)
|
|
|
|
Inapplicable
|
314(d)
|
|
|
|
Inapplicable
|
314(e)
|
|
|
|
11.5
|
314(f)
|
|
|
|
Inapplicable
|
315(a), (c) and (d)
|
|
|
|
6.1
|
315(b)
|
|
|
|
5.11
|
315(e)
|
|
|
|
5.12
|
316(a)(1)
|
|
|
|
5.9
|
316(a)(2)
|
|
|
|
Not required
|
316(a)(last sentence)
|
|
|
|
7.4
|
316(b)
|
|
|
|
5.7
|
317(a)
|
|
|
|
5.2
|
317(b)
|
|
|
|
3.4(a) and (b)
|
|
|
|
1
|
|
This Cross Reference Sheet is not part of the Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
ARTICLE ONE DEFINITIONS
|
|
|
1
|
|
|
SECTION 1.1 Certain Terms Defined
|
|
|
1
|
|
|
|
|
|
|
ARTICLE TWO SECURITIES
|
|
|
5
|
|
|
SECTION 2.1 Forms Generally
|
|
|
5
|
|
|
SECTION 2.2 Form of Trustees Certificate of Authentication
|
|
|
6
|
|
|
SECTION 2.3 Amount Unlimited; Issuable in Series
|
|
|
6
|
|
|
SECTION 2.4 Authentication and Delivery of Securities
|
|
|
8
|
|
|
SECTION 2.5 Execution of Securities
|
|
|
9
|
|
|
SECTION 2.6 Certificate of Authentication
|
|
|
9
|
|
|
SECTION 2.7 Denomination and Date of Securities; Payments of Interest
|
|
|
10
|
|
|
SECTION 2.8 Registration, Transfer and Exchange
|
|
|
11
|
|
|
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities
|
|
|
14
|
|
|
SECTION 2.10 Cancellation of Securities; Destruction Thereof
|
|
|
15
|
|
|
SECTION 2.11 Temporary Securities
|
|
|
15
|
|
|
SECTION 2.12 Global Securities
|
|
|
16
|
|
|
|
|
|
|
ARTICLE THREE COVENANTS OF THE ISSUER
|
|
|
16
|
|
|
SECTION 3.1 Payment of Principal and Interest
|
|
|
16
|
|
|
SECTION 3.2 Offices for Payments, Etc.
|
|
|
17
|
|
|
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee
|
|
|
17
|
|
|
SECTION 3.4 Paying Agents
|
|
|
17
|
|
|
SECTION 3.5 Written Statement to Trustee
|
|
|
18
|
|
|
SECTION 3.6 Existence
|
|
|
18
|
|
|
|
|
|
|
ARTICLE FOUR SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
|
|
|
18
|
|
|
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders
|
|
|
18
|
|
|
SECTION 4.2 Preservation and Disclosure of Securityholders Lists
|
|
|
18
|
|
|
SECTION 4.3 Reports by the Issuer
|
|
|
20
|
|
|
SECTION 4.4 Reports by the Trustee
|
|
|
20
|
|
|
|
|
|
|
ARTICLE FIVE REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
|
|
20
|
|
-i-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default
|
|
|
20
|
|
|
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt
|
|
|
22
|
|
|
SECTION 5.3 Application of Proceeds
|
|
|
25
|
|
|
SECTION 5.4 Suits for Enforcement
|
|
|
26
|
|
|
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings
|
|
|
26
|
|
|
SECTION 5.6 Limitations on Suits by Securityholders
|
|
|
26
|
|
|
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain Suits
|
|
|
27
|
|
|
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default
|
|
|
27
|
|
|
SECTION 5.9 Control by Securityholders
|
|
|
27
|
|
|
SECTION 5.10 Waiver of Past Defaults
|
|
|
27
|
|
|
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances
|
|
|
28
|
|
|
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs
|
|
|
28
|
|
|
|
|
|
|
ARTICLE SIX CONCERNING THE TRUSTEE
|
|
|
29
|
|
|
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default
|
|
|
29
|
|
|
SECTION 6.2 Certain Rights of the Trustee
|
|
|
30
|
|
|
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof
|
|
|
31
|
|
|
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons; Collections, Etc.
|
|
|
31
|
|
|
SECTION 6.5 Moneys Held by Trustee
|
|
|
31
|
|
|
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim
|
|
|
32
|
|
|
SECTION 6.7 Right of Trustee to Rely on
Officers Certificate, Etc.
|
|
|
32
|
|
|
SECTION 6.8 Persons Eligible for Appointment as Trustee
|
|
|
32
|
|
|
SECTION 6.9 Resignation and Removal; Appointment of Successor Trustee
|
|
|
33
|
|
-ii-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
SECTION 6.10 Acceptance of Appointment by Successor Trustee
|
|
|
34
|
|
|
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business of Trustee
|
|
|
35
|
|
|
SECTION 6.12 Preferential Collection of Claims Against the Issuer
|
|
|
35
|
|
|
|
|
|
|
ARTICLE SEVEN CONCERNING THE SECURITYHOLDERS
|
|
|
35
|
|
|
SECTION 7.1 Evidence of Action Taken by Securityholders
|
|
|
35
|
|
|
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities
|
|
|
36
|
|
|
SECTION 7.3 Holders to Be Treated as Owners
|
|
|
36
|
|
|
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding
|
|
|
37
|
|
|
SECTION 7.5 Right of Revocation of Action Taken
|
|
|
37
|
|
|
|
|
|
|
ARTICLE EIGHT SUPPLEMENTAL INDENTURES
|
|
|
38
|
|
|
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders
|
|
|
38
|
|
|
SECTION 8.2 Supplemental Indentures With Consent of Securityholders
|
|
|
39
|
|
|
SECTION 8.3 Effect of Supplemental Indenture
|
|
|
40
|
|
|
SECTION 8.4 Documents to Be Given to Trustee
|
|
|
40
|
|
|
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures
|
|
|
40
|
|
|
|
|
|
|
ARTICLE NINE CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
|
|
40
|
|
|
SECTION 9.1 Issuer May Consolidate, Etc., on Certain Terms
|
|
|
40
|
|
|
SECTION 9.2 Successor Corporation Substituted
|
|
|
41
|
|
|
SECTION 9.3 Opinion of Counsel to Trustee
|
|
|
41
|
|
|
|
|
|
|
ARTICLE TEN SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
|
|
|
42
|
|
|
SECTION 10.1 Satisfaction and Discharge of Indenture; Defeasance
|
|
|
42
|
|
|
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities
|
|
|
44
|
|
|
SECTION 10.3 Repayment of Moneys Held by Paying Agent
|
|
|
44
|
|
|
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years
|
|
|
44
|
|
|
SECTION 10.5 Indemnity for U.S. Government Obligations
|
|
|
44
|
|
-iii-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
ARTICLE ELEVEN MISCELLANEOUS PROVISIONS
|
|
|
45
|
|
|
SECTION 11.1 Incorporators, Shareholders, Officers and Directors of Issuer Exempt
from Individual Liability
|
|
|
45
|
|
|
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders
|
|
|
45
|
|
|
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture
|
|
|
45
|
|
|
SECTION 11.4 Notices and Demands on Issuer, Trustee and Securityholders
|
|
|
45
|
|
|
SECTION 11.5 Officers Certificates and Opinions of Counsel; Statements to Be
Contained Therein
|
|
|
46
|
|
|
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays
|
|
|
47
|
|
|
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of
1939
|
|
|
47
|
|
|
SECTION 11.8 New York Law to Govern
|
|
|
47
|
|
|
SECTION 11.9 Counterparts
|
|
|
47
|
|
|
SECTION 11.10 Effect of Headings
|
|
|
47
|
|
|
SECTION 11.11 Securities in Foreign Currencies
|
|
|
47
|
|
|
|
|
|
|
ARTICLE TWELVE REDEMPTION OF SECURITIES AND SINKING FUNDS
|
|
|
47
|
|
|
SECTION 12.1 Applicability of Article
|
|
|
47
|
|
|
SECTION 12.2 Notice of Redemption; Partial Redemptions
|
|
|
48
|
|
|
SECTION 12.3 Payment of Securities Called for Redemption
|
|
|
49
|
|
|
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption
|
|
|
49
|
|
|
SECTION 12.5 Mandatory and Optional Sinking Funds
|
|
|
50
|
|
|
|
|
|
|
ARTICLE THIRTEEN SUBORDINATION OF SECURITIES
|
|
|
51
|
|
|
SECTION 13.1 Securities Subordinate to Senior Debt
|
|
|
51
|
|
|
SECTION 13.2 Issuer Not to Pay if Senior Debt of Issuer is in Default
|
|
|
51
|
|
|
SECTION 13.3
Payment Over of Proceeds upon Dissolution, Default, Etc., of the
Issuer
|
|
|
52
|
|
|
SECTION 13.4 Subrogation to Rights of Holders of Senior Debt
|
|
|
53
|
|
|
SECTION 13.5 Reliance on Certificate of Liquidating Agent
|
|
|
53
|
|
|
SECTION 13.6 Payment Permitted if No Default
|
|
|
53
|
|
-iv-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
SECTION 13.7 Trustee Not Charged with Knowledge of Prohibition
|
|
|
54
|
|
|
SECTION 13.8 Provisions are Solely to Define Relative Rights
|
|
|
54
|
|
|
SECTION 13.9 No Waiver of Subordination Provisions
|
|
|
54
|
|
|
SECTION 13.10 Trustee to Effectuate Subordination
|
|
|
54
|
|
|
SECTION 13.11 Rights of Trustee as Holder of Senior Debt
|
|
|
55
|
|
|
SECTION 13.12 Article Applicable to Paying Agents
|
|
|
55
|
|
-v-
This Junior Subordinated Indenture, dated as of June
, 2007 (the Indenture), between THE
PROGRESSIVE CORPORATION, an Ohio corporation (the Issuer), and THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee (the Trustee),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series
(the Securities) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof; and
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the Holders thereof,
the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1
Certain Terms Defined
. The following terms (except as otherwise expressly
provided or unless the context otherwise clearly requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 (Securities Act) are referred
to in the Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act (except as herein otherwise expressly provided or unless the context otherwise
clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act
and in said Securities Act as in force at the date of this Indenture. All accounting terms used
herein and not expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term
generally accepted accounting
principles
means such accounting principles as are generally accepted at the time of any
computation in the United States of America. The words
herein, hereof,
and
hereunder
and
other words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular.
Authorized Newspaper
means The Wall Street Journal, The New York Times or other newspaper of
general circulation throughout the United States of America.
Board of Directors
means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act hereunder.
Business Day
means, with respect to any Security, a day that in the city (or in any of the
cities, if more than one) in which amounts are payable, as specified in the form of such Security,
is not a day on which banking institutions are authorized by law or regulation to close or a day on
which transactions in the currency in which the Securities are payable are not conducted.
Commission
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if any time after the execution and delivery
of this Indenture such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on such date.
Corporate Trust Office
means the office of the Trustee at which the corporate trust business
of the Trustee, at any particular time, shall be principally administered, which office is, at the
date as of which this Indenture is dated, located at 2 North La
Salle, Chicago, IL 60602, Attn:
Global Corporate Trust.
Coupon
means any interest coupon appertaining to a Security.
Event of Default
means any event or condition specified as such in Section 5.1.
Foreign Currency
means a currency issued by the government of a country other than the
United States.
Global Security
means a Security that evidences all or part of a class of Securities,
registered in the name of a depositary or its nominee as contemplated by Section 2.12.
Holder, holder of Securities, Securityholder
or other similar terms mean (a) in the case
of any Registered Security, the Person in whose name such Security is registered in the security
register kept by the Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining thereto,
as the case may be.
Indenture
means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and shall include the forms
and terms of particular series of Securities established as contemplated hereunder.
Interest
means, when used with respect to non-interest-bearing Securities, interest payable
after maturity.
Issuer
means THE PROGRESSIVE CORPORATION, an Ohio corporation, and, subject to Article Nine,
its successors and assigns.
2
Officers Certificate
means a certificate signed by any two of the following officers of the
Issuer: president, treasurer, any vice president, secretary or any assistant secretary and
delivered to the Trustee. Each such certificate shall include the statements provided for in
Section 11.5.
Opinion of Counsel
means an opinion in writing signed by legal counsel who may be an
employee of or counsel to the Issuer or other counsel who shall be satisfactory to the Trustee.
Each such opinion shall include the statements provided for in Section 11.5, if and to the extent
required hereby.
original issue date
of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.
Original Issue Discount Security
means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.1.
Outstanding,
when used with reference to Securities, subject to the provisions of Section
7.4, means, as of any particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer
for the holders of such Securities (if the Issuer shall act as its own paying agent),
provided
that
if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section 2.9 (except with respect
to any such Security as to which proof satisfactory to the Trustee is presented that such Security
is held by a person in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
3
Person
means any individual, corporation, partnership, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
principal
whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include and premium, if any.
Registered Security
means any Security registered on the Security Register of the Issuer.
Responsible Officer
when used with respect to the Trustee means any officer of the Trustee
with direct responsibility for the administration of this Indenture and also means, with respect to
a particular corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular subject.
Security
or
Securities
has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under this Indenture.
Security Register
shall have the meaning set forth in Section 2.8.
Senior Debt
means, with respect to the Issuer, the principal of and any premium and interest
on, and any other payment, due pursuant to any of the following, whether incurred prior to, on or
after the date of this Indenture: (i) all obligations of the Issuer for money borrowed (other than
obligations pursuant to this Indenture); (ii) all obligations evidenced by notes, debentures (other
than the Securities), bonds or other similar instruments issued by the Issuer, including
obligations incurred in connection with the acquisition of property, assets or businesses and
including all other debt securities issued by the Issuer to any trust or a trustee of such trust,
or to a partnership or other affiliate that acts as a financing vehicle for the Issuer, in
connection with the issuance of securities by such vehicles; (iii) all of the Issuers obligations
under leases required or permitted to be capitalized under generally accepted accounting
principles; (iv) all obligations of the Issuer issued or assumed as the deferred purchase price of
property or services, including all obligations under master lease transactions pursuant to which
the Issuer or any of its subsidiaries have agreed to be treated as owner of the subject property
for federal income tax purposes (but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business); (v) all obligations of the Issuer for the
reimbursement on any letter of credit, bankers acceptance, or security purchase facility or
similar facilities for the Issuers account; (vi) all of the Issuers payment obligations under
interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements
at the time of determination, including any such obligations incurred solely to act as a hedge
against increases in interest rates that may occur under the terms of other outstanding variable or
floating rate indebtedness of the Issuer; (vii) all obligations of the types referred to in clauses
(i) through (vi) above of other persons and all dividends of another Person the payment which, in
either case, the Issuer has assumed or guaranteed or as to which it is responsible or liable as
obligor, guarantor or otherwise, directly or indirectly, jointly or severally; (viii) all
compensation and reimbursement obligations of the Issuer to the Trustee pursuant to this Indenture;
and (ix) amendments, modifications, refinancings, replacements, renewals, extensions or refundings
of any of the indebtedness referred to in clauses (i) through (viii) above.
4
An obligation that constitutes Senior Debt shall continue to be Senior Debt and entitled to
the benefits of the subordination provisions hereof irrespective of any amendment, modification or
waiver of any term of such obligation or extension or renewal of such obligation. Notwithstanding
anything to the contrary in the foregoing, Senior Debt shall not include (1) indebtedness incurred
for the purchase of goods, materials or property, or for services obtained in the ordinary course
of business or for other liabilities arising in the ordinary course of business, (2) any
indebtedness which by its terms expressly provides that it is not superior in right of payment to
the Securities or (3) any of Issuers indebtedness owed to a person who is the Issuers subsidiary
or employee (except as required by law).
Trust Indenture Act of 1939
(except as otherwise provided in Sections 8.1 and 8.2) means the
Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally
executed.
Trustee
means the Person identified as Trustee in the first paragraph hereof and, subject
to the provisions of Article Six, shall also include any successor trustee.
Unregistered Security
means any Security other than a Registered Security.
U.S. Government Obligations
means direct obligations of the United States of America, backed
by its full faith and credit.
vice president
when used with respect to the Issuer, means any vice president, whether or
not designated by a number or a word or words added before or after the title of vice president.
Yield to Maturity
means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1
Forms Generally
. The Securities of each series and the Coupons, if any, to be
attached thereto shall be substantially in such form (not inconsistent with this Indenture) as
shall be established by or pursuant to a resolution of the Board of Directors or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities and Coupons, as evidenced
by their execution of the Securities and Coupons.
The definitive Securities and Coupons shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the officers
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executing such Securities and Coupons, as evidenced by their execution of such Securities and
Coupons.
SECTION 2.2
Form of Trustees Certificate of Authentication
. The Trustees certificate of
authentication on all Securities shall be in substantially the following form:
This is one of the Securities, of the series designated herein, referred to in the
within-mentioned Indenture.
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Trustee, as Trustee
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By
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Authorized Signatory
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SECTION 2.3
Amount Unlimited; Issuable in Series
. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a resolution of the Board of Directors and set forth in an Officers Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the
series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the series that may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11 or 12.3);
(3) the date or dates on which the principal of the Securities of the series is payable or
the method by which such date or dates shall be determined;
(4) the rate or rates at which the Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or dates from which
such interest shall accrue, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom interest is payable
and the person to whom any interest on a Registered Security shall be payable if other than
the person in whose name the Security is registered on the record date;
(5) the place or places where the principal and any interest on Securities of the series
shall be payable;
(6) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Issuer, pursuant to any sinking fund or otherwise;
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(7) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or periods within which and the
terms and conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) if other than denominations of U.S. $1,000 and any integral multiple thereof, in the
case of Registered Securities, or U.S. $1,000 in the case of Unregistered Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 5.1 or provable in bankruptcy pursuant to Section 5.2;
(10) any authenticating or paying agents, transfer agents or registrars or any other agents
with respect to the Securities of such series;
(11) if other than such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public or private debts, the coin or currency or
units based on or relating to currencies in which payment of the principal of and interest,
if any, on the Securities of that series shall be payable;
(12) if the principal of or interest, if any, on the Securities of that series are to be
payable, at the election of the Issuer or a Holder thereof, in a coin or currency or units
based on or relating to currencies other than that in which the Securities are stated to be
payable, the period or periods within which, and the terms and conditions upon which, such
election may be made;
(13) if the amount of payments of principal of or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or other method based on a coin
or currency or units based on or relating to currencies other than that in which the
Securities are stated to be payable, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as Registered Securities or
Unregistered Securities (with or without Coupons), or both, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities and, if other than as provided in
Section 2.8, the terms upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer will pay additional amounts on the
Securities of the series held by a Person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Issuer will
have the option to redeem such Securities rather than pay such additional amounts;
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(16) if applicable, that any Securities shall be issuable in whole or in part in the form of
one or more Global Securities, the form of any applicable legends to be borne by such Global
Security and if the Securities of such series are to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Security of such series) only upon
receipt of certain certificates or other documents or satisfaction of other conditions not
otherwise set forth herein, then the form and terms of such certificates, documents or
conditions;
(17) the additions, modifications or deletions, if any, in the Events of Default or
covenants of the Issuer set forth herein with respect to the Securities of such series;
(18) if applicable, that the subordination provisions of Article XIII shall apply to the
Securities of the series or that any different subordination provisions, including a
different definition of the term Senior Debt shall apply to the Securities of such series;
and
(19) any other terms of the series, including provisions for payment by wire transfers, if
any, or modifications of the definition of Business Day (which terms shall not adversely
affect the interests of the holders of the Securities).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors
or in any such indenture supplemental hereto.
SECTION 2.4
Authentication and Delivery of Securities
. At any time and from time to time
after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series
(having attached thereto appropriate Coupons, if any), executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such Securities and
Coupons, if any, to or upon the written order of the Issuer, signed by any two of the following
officers of the Issuer: president, treasurer, any vice president, secretary or any assistant
secretary, without any further action by the Issuer. In authenticating such Securities and
Coupons, if any, and accepting the additional responsibilities under this Indenture in relation to
such Securities and Coupons, if any, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors by or pursuant to
which the form and terms of such series were established, in each case certified by the
secretary or an assistant secretary of the Issuer;
(2) an executed supplemental indenture, if any;
(3) an Officers Certificate setting forth the form and terms of the Securities and Coupons,
if any, as required pursuant to Section 2.3, and prepared in accordance with Section 11.5;
(4) an Opinion of Counsel, prepared in accordance with Section 11.5, which shall state:
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(a) that the form or forms and terms of such Securities and Coupons, if any, have been
established by or pursuant to a resolution of the Board of Directors or by a supplemental
indenture as permitted by Sections 2.1 and 2.3 in conformity with the provisions of this
Indenture;
(b) that such Securities and Coupons, if any, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding obligations of the Issuer;
(c) that all laws and requirements in respect of the execution and delivery by the
Issuer of the Securities and Coupons, if any, have been complied with in all material
respects; and
(d) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver any Securities and
Coupons, if any, under this Section if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of
directors or board of trustees, executive committee, or a trust committee of directors, trustees or
Responsible Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders.
SECTION 2.5
Execution of Securities
. The Securities and, if applicable, each Coupon
appertaining thereto, shall be signed on behalf of the Issuer by both (a) its president or its
treasurer under its corporate seal and (b) attested by any of its vice presidents, its secretary
or any of its assistant secretaries. Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security or Coupon that has been
duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities or Coupons shall
cease to be such officer before the Security or Coupon so signed (or the Security to which the
Coupon so signed appertains) shall be authenticated and delivered by the Trustee or disposed of by
the Issuer, such Security or Coupon nevertheless may be authenticated and delivered or disposed of
as though the person who signed such Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the Issuer by such persons as, at the
actual date of the execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any such person was
not such an officer.
SECTION 2.6
Certificate of Authentication
. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
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Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture. No Coupon shall be entitled to the benefits of this Indenture
or shall be valid or obligatory for any purpose until such certificate by the Trustee shall have
become duly executed on the Security to which such Coupon appertains.
SECTION 2.7
Denomination and Date of Securities; Payments of Interest
. The Securities
shall be issuable as Registered Securities or Unregistered Securities in such denominations as
shall be specified as contemplated by Section 2.3. In the absence of any such specification with
respect to the Registered Securities of any series, the Registered Securities of such series shall
be issuable in dominations of U.S. $1,000 and any integral multiple thereof. In the absence of any
such specification with respect to the Unregistered Securities, Unregistered Securities shall be
issued in the denomination of U.S. $1,000. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan as the officers of the
Issuer executing the same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication. Each Unregistered
Security shall be dated as provided in the resolution or resolutions of the Board of Directors of
the Issuer or the supplemental indenture referred to in Section 2.3. The Securities of each series
shall bear interest, if any, from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
The person in whose name any Registered Security on the Security Register maintained by the
Issuer pursuant to Section 2.8 of any series is registered at the close of business on any record
date applicable to a particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered Security subsequent to the record date
and prior to such interest payment date, except if and to the extent the Issuer shall default in
the payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding Registered Securities
for such series are registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the holders of Registered
Securities not less than 15 days preceding such subsequent record date. The term record date as
used with respect to any interest payment date (except a date for payment of defaulted interest)
shall mean the date specified as such in the terms of the Registered Securities of any particular
series, or, if no such date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not
such record date is a Business Day.
Any defaulted interest payable in respect of any Unregistered Security shall be payable
pursuant to such procedures as are satisfactory to the Trustee and in such manner so that there is
no discrimination as between the holders of Registered Securities and Unregistered Securities of
the same series and notice of the payment date therefor shall be given by the Trustee in the name
and at the expense of the Issuer by publication at least once in an Authorized Newspaper. In
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case an Unregistered Security is surrendered in exchange for a Registered Security after the
close of business on any record date for the payment of defaulted interest and before the opening
of business on the proposed date of payment of such defaulted interest, the Coupon appertaining to
such surrendered Unregistered Security and due for payment on such proposed date of payment will
not be surrendered with such surrendered Unregistered Security and interest payable on such
proposed date of payment will be made only to the holder of such Coupon on such proposed date.
SECTION 2.8
Registration, Transfer and Exchange
. (a) The Issuer will keep or cause to be
kept at each office or agency to be maintained for the purpose as provided in Section 3.2 a
register or registers for each series of Registered Securities issued hereunder (collectively, the
Security Register) in which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, or cause the registration of transfer of, Registered
Securities as in this Article provided. Such register shall be in written form in the English
language or in any other form capable of being converted into such form within a reasonable time.
At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered Security of any series at
any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same series in authorized
denominations for a like aggregate principal amount.
Unregistered securities (except for any temporary Unregistered Securities) and Coupons (except
for Coupons attached to any temporary Unregistered Securities) shall be transferable by delivery.
Any Registered Security or Registered Securities of any series may be exchanged for a
Registered Security or Registered Securities of the same series in other authorized denominations,
in an equal aggregate principal amount. Registered Securities of any series to be exchanged shall
be surrendered at any office or agency maintained by the Issuer for the purpose as provided in
Section 3.2, and the Issuer shall execute and the Trustee shall authenticate and deliver in
exchange therefor the Registered Security or Registered Securities of the same series which the
Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
If the Securities of any series are issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered Securities of such series, maturity date
and interest rate, in any authorized denominations and in a like aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the office or agency of the Issuer
that shall be maintained for such purpose in accordance with Section 3.2, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons
in default thereto appertaining, and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more than one
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authorized denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such series, maturity date,
interest rate and original issue date, in other authorized denominations and in a like aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged at the office or
agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, with, in the case of Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided. Unless otherwise
specified pursuant to Section 2.3, Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any Securities, and the Coupons appertaining
thereto, if any, are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities, and the Coupons appertaining thereto, if any, which the
Holder making the exchange is entitled to receive. Notwithstanding the foregoing, if an
Unregistered Security of any series is surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of business at such office or agency on any
record date and before the opening of business at such office or agency on the applicable interest
payment date, such Unregistered Security shall be surrendered without the Coupon, if any, relating
to such interest payment date. All Securities and Coupons surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly canceled and disposed of by the Trustee
and the Trustee will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the Issuer and the
Trustee duly executed by, the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of transfer of
Securities and shall not be required to exchange or register a transfer of any Securities until
such payment is made. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days next preceding the first mailing of notice of redemption of
Securities of such series to be redeemed, or (b) any Securities selected, called or being called
for redemption except, in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed and except that an
Unregistered Security may be exchanged for a Registered Security of the same series being called
for redemption.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities to the contrary,
neither the Issuer nor the Trustee (which shall rely on an Officers Certificate and an Opinion of
Counsel) shall be required to exchange any Unregistered Security for a Registered
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Security if such exchange would result in adverse Federal income tax consequences to the
Issuer (including, without limitation, the inability of the Issuer to deduct from its income, as
computed for Federal income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws.
The provisions of clauses (1), (2), (3), (4) and (5) below shall apply only to Global
Securities:
(1) Each Global Security that is a Registered Security authenticated under this
Indenture shall be registered in the name of the depositary designated for such Global
Security or a nominee thereof and delivered to such depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or the Securities, no
Global Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name of any
Person other than the depositary for such Global Security or a nominee thereof unless (A)
such depositary (i) has notified the Issuer that it is unwilling or unable to continue as
depositary for such Global Security and a successor Depositary has not been appointed by
the Issuer within 90 days of receipt by the Issuer of such notification or (ii) has ceased
to be a clearing agency registered under the Securities Exchange Act of 1934, as amended,
and a successor Depositary has not been appointed by the Issuer within 90 days after the
Issuer became aware of such cessation or (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security.
(3) Subject to clause (2) above, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered in such names as the Depositary
for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Security or any portion thereof shall be
authenticated and delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the depositary for such Global
Security or a nominee thereof.
(5) None of the Issuer, the Trustee nor any agent of the Issuer or the Trustee will
have any responsibility or liability for the accuracy or completeness of the records
relating to or payments made on account of beneficial ownership interests of a Global
Security, for any act or omissions of a depositary or transactions between the depositary
and beneficial owners, or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
(b) Notwithstanding any other provisions of this Indenture or the Securities, transfers of a
Global Security, in whole or in part, exchanges of interests in Global Securities or of other
Securities as described in the following two paragraphs below shall be made only in
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accordance with this Section 2.8. Transfers and exchanges subject to this Section 2.8 shall
also be subject to the other provisions of this Indenture that are not inconsistent with this
Section 2.8.
(1) Except as provided in Section 2.8(a), a Global Security may not be transferred, in
whole or in part, to any Person other than the depositary or a nominee thereof, and no such
transfer to any such other Person may be registered;
provided
that this clause (1)
shall not prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. No transfer of a Security to any Person
shall be effective under this Indenture or the Securities unless and until such Security
has been registered in the name of such Person. Nothing in this clause (1) shall prohibit
or render ineffective any transfer of a beneficial interest in a Global Security effected
in accordance with the other provisions of this Section 2.8(b).
(2) Securities other than Global Securities may be exchanged (on transfer or
otherwise) for Securities that are not Global Securities or for beneficial interests in a
Global Security (if any is then Outstanding) only in accordance with such procedures, as
may be from time to time adopted by the Issuer and the Trustee and as are consistent with
the depositarys applicable procedures.
SECTION 2.9
Mutilated, Defaced, Destroyed, Lost and Stolen Securities
. In case any
temporary or definitive Security or any Coupon appertaining to any Security shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the
written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen, with Coupons corresponding to the Coupons appertaining to the
Security so mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupons appertained, with
Coupons appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case, the applicant for a substitute Security or Coupon shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as
may be required by the Issuer, Trustee and said agent to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon, the Issuer may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) and the cost of any
indemnity bond connected therewith. In case any Security or Coupon which has matured or is about
to mature or has been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, at its sole discretion, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated or defaced Security or Coupon), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security
or indemnity as any of them may require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Issuer and the
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Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be enforceable at any time by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities or Coupons shall be held and owned upon
the express condition that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities or Coupons and shall preclude any and all other rights or remedies notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 2.10
Cancellation of Securities; Destruction Thereof
. All Securities and Coupons
surrendered for payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of
the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to
the Trustee, shall be canceled by it; and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The Trustee shall
destroy cancelled Securities and Coupons held by it and deliver a certificate of destruction to the
Issuer or shall otherwise comply with its document retention policy and applicable law. If the
Issuer shall acquire any of the Securities or Coupons, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities or Coupons unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.11
Temporary Securities
. Pending the preparation of definitive Securities for
any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as
Registered Securities without Coupons, or as Unregistered Securities with or without Coupons
attached thereto, of any authorized denomination, and substantially in the form of the definitive
Securities of such series, but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities. Without unreasonable delay, the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to be maintained by the
Issuer for that purpose pursuant to Section 3.2, and in the case of Unregistered Securities,
together with any unmatured Coupons and any matured Coupons in default appertaining thereto, at any
office or agency maintained by the Issuer for such purpose as specified pursuant to Section 3.2,
and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of
15
definitive Securities of the same series in authorized denominations. Until so exchanged, the
temporary Securities and any unmatured Coupons appertaining thereto of any series shall be entitled
to the same benefits under this Indenture as definitive Securities and any unmatured Coupons
appertaining thereto of such series. The provisions of this Section are subject to any
restrictions or limitations on the issue and delivery of temporary Unregistered Securities of any
series that may be established pursuant to Section 2.3 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency of the Issuer located inside or outside the United States
and the procedures pursuant to which definitive Unregistered Securities of such series would be
issued in exchange for such temporary global Unregistered Security).
SECTION 2.12
Global Securities
. Securities may be issued in the form of one or more Global
Securities to be held by a securities depositary. If the Issuer determines at any time that
Securities of a series shall no longer be represented by Global Security certificates, the Issuer
shall inform the depositary of such determination. If participants of the depositary elect to
withdraw their beneficial interests, the Issuer shall issue certificates in definitive form in
exchange for such beneficial interests in the Global Security certificates. Any Global Security,
or portion thereof, shall be exchangeable for Security certificates registered in the names
directed by the depositary, as set forth more fully in Section 2.8. Global Securities shall bear
customary legends stating that such Securities are Global Securities.
As long as the depositary or its nominee is the registered owner of a Global Security
certificate, the depositary or its nominee, as the case may be, shall be considered the sole holder
of the Global Security certificates and all Securities represented by such certificates for all
purposes under this Indenture.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1
Payment of Principal and Interest
. The Issuer covenants and agrees for the
benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such series at the place or places, at the
respective times and in the manner provided in such Securities. Except as specified in Section
2.3, the interest on Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon presentation and surrender of
the several Coupons for such interest installments as are evidenced thereby as they severally
mature. Except as specified in Section 2.3, the interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such Securities) shall be
paid, as to the installments of interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of such interest. Each
installment of interest on the Registered Securities of any series may be paid by mailing checks
for such interest payable to or upon the written order of the holders of Registered Securities
entitled thereto as they shall appear on the registry books of the Issuer.
16
SECTION
3.2
Offices for Payments, Etc.
So long as any of the Securities remain
outstanding, the Issuer will maintain the following for each series: an office or agency (a) where
the Registered Securities may be presented for payment, (b) where the Registered Securities may be
presented for registration of transfer and for exchange as in this Indenture provided and (c) where
notices and demands to or upon the Issuer in respect of the Registered Securities or of this
Indenture may be served.
The Issuer will give to the Trustee written notice of the location of any such office or
agency and of any change of location thereof. With respect to each series of Securities and
Coupons whose terms are established pursuant to Section 2.3, the Issuer hereby designates the
Corporate Trust Office as the initial office to be maintained by it for each such purpose. In case
the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office.
SECTION 3.3
Appointment to Fill a Vacancy in Office of Trustee
. The Issuer, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4
Paying Agents
. Whenever the Issuer shall appoint a paying agent other than the
Trustee with respect to the Securities of any series, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for (i) the payment of the
principal of or interest on the Securities of such series (whether such sums have been paid to it
by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of
the holders of the Securities of such series or the Coupons appertaining thereto or (ii) the
payment of any sums due the Trustee hereunder, and
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor
on the Securities of such series) to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable.
The Issuer will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or
interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the Securities or the Coupons
appertaining thereto of any series, it will, on or before each due date of the principal of or
interest on the Securities or the Coupons appertaining thereto of such series, set aside, segregate
and hold in trust for the benefit of the holders of the Securities or the Coupons appertaining
thereto of such series a sum sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such action.
17
Anything in this Section to the contrary notwithstanding, the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held
in trust for any such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions of Sections 10.3 and 10.4.
SECTION 3.5
Written Statement to Trustee
. The Issuer will deliver to the Trustee on or
before April 30 in each year (beginning with April 30, 2008) a brief certificate (which need not
comply with Section 11.5) from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Issuers compliance with all
conditions and covenants under this Indenture (such compliance to be determined without respect to
any period of grace or requirement of notice provided under the Indenture).
SECTION 3.6
Existence
. Subject to Article Nine, the Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and its material
rights (charter and statutory) and franchises;
provided
,
however
, that the Issuer shall not be
required to preserve any such right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Issuer.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1
Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders
. The Issuer covenants and agrees that it will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses
of the holders of the Securities of each series:
(a) semiannually and not more than 15 days after each record date for the payment of interest
on such Securities, as hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest-bearing securities in each year, and
(b) at such other times as the Trustee may request in writing, within 30 days after receipt by
the Issuer of any such request as of a date not more than 15 days prior to the time such
information is furnished,
provided
that if and so long as the Trustee shall be the Security
registrar for such series and all of the Securities of such series are Registered Securities, such
list shall not be required to be furnished. The Trustee, at the request of the Issuer, shall
provide such list to the Issuer for so long as the Trustee shall be the Security registrar.
SECTION 4.2
Preservation and Disclosure of Securityholders Lists
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of each series of Securities (i) contained
in the most recent list furnished to it as provided in Section 4.1 and (ii) received or maintained
by
18
it in the capacity of Security registrar for such series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities (hereinafter referred to as applicants)
apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such
applicant has owned a Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to communicate with other
holders of Securities of a particular series (in which case the applicants must all hold Securities
of such series) or with holders of all Securities with respect to their rights under this Indenture
or under such Securities and such application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application provide the Issuer with notice of such request
and, at its election, either
(i) afford to such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of holders of Securities of
such series or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to such information, the
Trustee, upon the written request of such applicants, shall mail to each Securityholder of such
series or all Securities, as the case may be, whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this
Section a copy of the form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the Commission, together with
a copy of the material to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the holders of Securities of such
series or all Securities, as the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Securities and Coupons, by receiving and holding the same, agrees
with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any agent
19
of the Issuer or the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
SECTION 4.3
Reports by the Issuer
. The Issuer covenants to file with the Trustee, within
15 days after the Issuer is required to file the same with the Commission, copies of the annual
reports and of the information, documents, any other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations prescribe) which the
Issuer may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, or if the Issuer is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, or in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to time in such rules
and regulations. The Issuer shall also comply with the provisions of Section 314(a) of the Trust
Indenture Act of 1939.
SECTION 4.4
Reports by the Trustee
. Any Trustees report required under Section 313(a) of
the Trust Indenture Act of 1939 shall be transmitted or filed, as the case may be, on or before
July 15 in each year beginning July 15, 2008, as provided in Sections 313(b), 313(c) and 313(d) of
the Trust Indenture Act of 1939, so long as any Securities are Outstanding hereunder, and shall be
dated as of a date convenient to the Trustee no more than 60 days prior thereto.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1
Event of Default Defined; Acceleration of Maturity; Waiver of Default
. Except
as may be provided in any supplemental indenture applicable to any particular series of Securities,
Event of Default with respect to Securities of any series wherever used herein, means each one
of the following events which shall have occurred and be continuing (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the Securities of such
series as and when the same shall become due and payable, and continuance of such default for a
period of 30 days, subject to any mandatory or optional deferral provisions applicable to
installments of interest under the terms of the particular series of Securities; or
20
(b) default in the payment of all or any part of the principal on any of the Securities of
such series as and when the same shall become due and payable either at maturity, upon redemption,
by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall become
due and payable by the terms of the Securities of such series; or
(d) default in the performance, or breach, in any material respect of any covenant or warranty
of the Issuer in respect of the Securities of such series (other than a covenant or warranty in
respect of the Securities of such series, a default in the performance or breach of which is
elsewhere in this Section specifically dealt with or which is not deemed to constitute an Event of
Default under the terms of the particular series of Securities), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or certified mail, to the
Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of all series affected thereby, a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a Notice of
Default hereunder; or
(e) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall appoint a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial part
of its property or ordering the winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case commenced against the Issuer under any such law, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture or resolution of the
Board of Directors under which such series of Securities is issued or in the form of Security for
such series.
If an Event of Default with respect to a particular series of Securities described in clauses (a),
(b), (c) or (d) above occurs and is continuing, then, and in each and every such case, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of such
series then Outstanding hereunder (each such series voting as a separate class) by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series) of all Securities
of such series and the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable. If an Event of
Default described in clause (e) or (f) occurs and is continuing, then and in each and every such
case, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all
the
21
Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding and interest accrued
thereon, if any, to be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at any time after the
principal (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of such series (or of
all the Securities, as the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be, to the date of such payment or
deposit)) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the Trustee except as a
result of negligence or bad faith, and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6, and if any and all Events of Default under the Indenture, other
than the nonpayment of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein then and in every such
case the Holders of a majority in aggregate principal amount of all the Securities of such series,
each series voting as a separate class (or of all the Securities, as the case may be, voting as a
single class), then Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series (or with respect to all the Securities, as the case may be)
and rescind and annul such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts then owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 5.2
Collection of Indebtedness by Trustee; Trustee May Prove Debt
. The Issuer
covenants that (a) in case default shall be made in the payment of any installment of
22
interest on any of the Securities of any series when such interest shall have become due and
payable (unless said installment of interest has been deferred in accordance with the terms of such
series of Securities), and such default shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the principal of any of the Securities
of any series when the same shall have become due and payable, whether upon maturity of the
Securities of such series or upon any redemption or by declaration or otherwisethen upon demand
of the Trustee, the Issuer will pay to the Trustee for the benefit of the holders of the Securities
of such series the whole amount that then shall have become due and payable on all Securities of
such series, and Coupons appertaining thereto, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including agreed upon
compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities reasonably incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of its negligence or bad faith, and all
other amounts due to the Trustee or any predecessor Trustee pursuant to Section 6.6.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the Holders, whether or not the principal of and interest on the
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such Securities and collect in
the manner provided by law out of the property of the Issuer or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any other obligor upon
the Securities under Title 11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) shall have been appointed for or taken
possession of the Issuer or all or substantially all of its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Issuer or other obligor upon the
Securities of any series, or Coupons appertaining thereto, or to all or substantially all of
property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of
any Securities shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if
the Securities of any series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and unpaid in respect of
23
the Securities of any series, and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for agreed upon
compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all reasonable expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad
faith, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 6.6)
and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of
the Securities of any series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing
similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover agreed upon
compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad faith and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or Coupons appertaining thereto of
any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under any of the
Securities, or Coupons appertaining thereto, may be enforced by the Trustee without the possession
of any of the Securities, or Coupons appertaining thereto, or the production thereof on any trial
or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements, compensation and all other amounts due
pursuant to Section 6.6 to the Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the holders of the Securities, or Coupons
appertaining thereto, in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the holders of the Securities in respect to which such
action
24
was taken, and it shall not be necessary to make any holders of such Securities parties to any
such proceedings.
SECTION 5.3
Application of Proceeds
. Any moneys collected by the Trustee pursuant to this
Article in respect of any series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities, and Coupons appertaining thereto, in respect of which
moneys have been collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the presented Securities of
like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series in respect of
which moneys have been collected, including agreed upon compensation to the Trustee
and each predecessor Trustee and their respective agents and attorneys and of all
reasonable expenses and liabilities incurred, and all advances made, by the Trustee
in the exercise of its rights or discharge of its duties hereunder and each
predecessor Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section 6.6;
SECOND: Subject to Article Thirteen, in case the principal of the Securities of
such series in respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities of such series
in default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: Subject to Article Thirteen, in case the principal of the Securities of such
series in respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon the
overdue principal, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the Securities
of such series, then to the payment of such principal and interest or Yield to
Maturity, without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any installment
of interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
25
FOURTH: Subject to Article Thirteen, to the payment of the remainder, if any, to
the Issuer or any other person lawfully entitled thereto.
SECTION 5.4
Suits for Enforcement
. In case an Event of Default has occurred, has not been
waived and is continuing, the Trustee in its discretion may proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5
Restoration of Rights on Abandonment of Proceedings
. In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.6
Limitations on Suits by Securityholders
. No holder of any Security of any
series or of any Coupon appertaining thereto shall have any right by virtue or by availing of any
provision of this Indenture or of any Securities to institute any action or proceedings at law or
in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture or any
Security , or for the appointment of a receiver, liquidator, assignee, custodian, trustee, or
sequestrator (or other similar official) or for any other remedy hereunder or in respect of any
Securitiy, unless such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the holder of every Security or Coupon with every other
Holder and the Trustee, that no one or more holders of Securities of any series or of any Coupon
appertaining thereto shall have any right in any manner whatever by virtue or by availing
themselves of any provision of this Indenture or of any Security to affect, disturb or prejudice
the rights of any other such holder of Securities or Coupons, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right under this Indenture
or in respect of any Security, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities of the applicable series or of any Coupon appertaining
thereto. For the protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
26
SECTION 5.7
Unconditional Right of Securityholders to Institute Certain Suits
.
Notwithstanding any other provision in this Indenture and any provision of any Security, the right
of any holder of any Security or Coupon to receive payment of the principal of and interest on such
Security or Coupon on or after the respective due dates expressed in such Security or Coupon, or in
any Coupon appertaining thereto, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 5.8
Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
.
Except as provided in Section 2.9, no right or remedy herein conferred upon or reserved to the
Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and
every right and remedy, to the extent permitted by law, shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by this Indenture or by law to
the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.9
Control by Securityholders
. The holders of a majority in aggregate principal
amount of the Securities of each series affected (with each series voting as a separate class) at
the time Outstanding shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided
that such
direction shall not be otherwise than in accordance with law and the provisions of this Indenture
and any applicable supplemental indenture and
provided further
that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or proceeding so directed may
not lawfully be taken or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of holders of the
Securities of all series so affected not joining in the giving of said direction, it being
understood that (subject to Section 6.1) the Trustee shall have no duty to ascertain whether or not
such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.
SECTION 5.10
Waiver of Past Defaults
. Prior to the declaration of the acceleration of the
maturity of the Securities of any series as provided in Section 5.1, the holders of a majority in
27
aggregate principal amount of the Securities of such series at the time Outstanding on behalf of
the holders of all the Securities of such series may waive any past default or Event of Default
described in Section 5.1 and its consequences except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the holder of each
Security affected. In the case of any such waiver, the Issuer, the Trustee and the holders of the
Securities of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to
have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and
not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent thereon.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.11
Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
.
The Trustee, within 90 days after the occurrence of a default known to the Trustee with respect to
the Securities of any series, shall provide notice thereof to the holders of Outstanding Securities
of such series and Coupons appertaining thereto, if any, by mailing such notice to such Holders at
their addresses as they shall appear in the registry books, unless such defaults shall have been
cured before the giving of such notice (the term default or defaults for the purposes of this
Section being hereby defined to mean any event or condition which is, or with notice or lapse of
time or both would become, an Event of Default);
provided
that, except in the case of default in
the payment of the principal of or interest on any of the Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or trustees and/or Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is in the interests of the
Securityholders of such series;
provided
, further, that in the case of any default of the character
specified in clause (d) of Section 5.1, no such notice to Holders shall be given until at least 60
days after the occurrence thereof.
SECTION 5.12
Right of Court to Require Filing of Undertaking to Pay Costs
. The parties to
this Indenture agree, and each holder of any Security or Coupon by his acceptance thereof shall be
deemed to have agreed, that any court in its discretion may require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court in its discretion may assess
reasonable costs, including reasonable attorneys fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Securityholder or group of Securityholders of any series holding in
the
28
aggregate more than 10% in aggregate principal amount of the Securities Outstanding of such series,
or to any suit instituted by any Securityholder for the enforcement of the payment of the principal
of or interest on any Security or Coupon on or after the due date expressed in such Security or
Coupon.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1
Duties and Responsibilities of the Trustee; During Default; Prior to Default
.
With respect to the holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a series has occurred
(which has not been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and
after the curing or waiving of all such Events of Default with respect to such series which may
have occurred: (i) the duties and obligations of the Trustee with respect to the Securities of any series shall be
determined solely by the express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and (ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements, certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the holders pursuant to Section 5.9 relating to
the time, method and place of conducting any proceeding for any remedy available to
29
the Trustee under, or by reason of exercising any trust or power conferred upon the Trustee, in
accordance with the terms of this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2
Certain Rights of the Trustee
. In furtherance of and subject to the Trust
Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, Officers Certificate or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently
evidenced by an Officers Certificate or order of the Issuer (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of
the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action reasonably taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts, rights or powers vested
in it by this Indenture at the request, order or direction of any of the Securityholders pursuant
to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion, rights or powers conferred
upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all
Events of Default, the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the holders of not less than a majority
in aggregate principal amount of the Securities of all series then Outstanding;
provided
that, if
the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
30
the Trustee may require reasonable indemnity from the requesting Holder against such expenses or
liabilities as a condition to proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(h) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a
Responsible Officer has actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the particular Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to the Trustee hereunder,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its respective capacities hereunder, and each agent,
custodian and other Person employed to act on behalf of the Trustee in any such capacity hereunder.
SECTION 6.3
Trustee Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof
.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4
Trustee and Agents May Hold Securities or Coupons; Collections, Etc.
The
Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and, subject to Sections 6.8 and 6.13, if operative, may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the
same rights it would have if it were not the Trustee or such agent.
SECTION 6.5
Moneys Held by Trustee
. Subject to the provisions of Section 10.4 hereof, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys received by it
hereunder.
31
SECTION 6.6
Compensation and Indemnification of Trustee and Its Prior Claim
. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to,
agreed upon compensation (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of this Indenture or
the trusts hereunder and its duties hereunder, including the reasonable costs and expenses of
defending itself against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee for reasonable expenses,
disbursements and advances shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim
to that of the Securities and Coupons upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of particular Securities or
Coupons, and the Securities and Coupons are hereby subordinated to such senior claim.
SECTION 6.7
Right of Trustee to Rely on Officers Certificate, Etc.
Subject to Sections
6.1 and 6.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed), in the absence of negligence or bad faith on the part of the Trustee, may
be deemed to be conclusively proved and established by an Officers Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.
SECTION 6.8
Persons Eligible for Appointment as Trustee
. The Trustee for each series of
Securities hereunder shall at all times be a corporation organized and doing business under the
laws of the United States of America or of any State or the District of Columbia having a combined
capital and surplus of at least $50,000,000, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal, State or District
of Columbia authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 6.8, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.8, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.9.
32
No obligor upon the Securities or person directly or indirectly controlling, controlled by or under
common control with such obligor shall serve as Trustee for any series of Securities.
The Trustee shall comply with Section 310(b) of the Trust Indenture Act of 1939.
The provisions of this Section 6.8 are in furtherance of and subject to Section 310(a) of the Trust
Indenture Act of 1939.
SECTION 6.9
Resignation and Removal; Appointment of Successor Trustee
.
(a) The Trustee, or any trustee or trustees hereafter appointed, at any time may resign with
respect to one or more or all series of Securities by giving written notice of resignation to the
Issuer. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee
shall have been so appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has
been a bona fide holder of a Security or Securities of the applicable series for at least six
months may, subject to the provisions of Section 5.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
thereupon, after such notice, if any, as it may deem proper and prescribe, may appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture
Act of 1939 with respect to any series of Securities after written request therefor by the Issuer
or by any Securityholder who has been a bona fide holder of a Security or Securities of such series
for at least six months; or (ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.8 and shall fail to resign after written request therefor by the Issuer or
by any Securityholder; or (iii) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of
the Trustee or of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation; then, in any such case, the Issuer may remove the Trustee with respect
to the applicable series of Securities and appoint a successor trustee for such series by written
instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 7.1, any Securityholder who has been a bona fide
holder of a Security or Securities of such series for at least six months, on behalf of himself and
all others similarly situated, may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
33
(c) The holders of a majority in aggregate principal amount of the Securities of each series at the
time Outstanding at any time may remove the Trustee with respect to securities of such series and
appoint a successor trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided
for in Section 7.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a
successor trustee with respect to such series pursuant to any of the provisions of this Section 6.9
shall become effective upon acceptance of appointment by the successor trustee as provided in
Section 6.10.
SECTION 6.10
Acceptance of Appointment by Successor Trustee
. Any successor trustee
appointed as provided in Section 6.9 shall execute and deliver to the Issuer and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment of its charges then unpaid, the trustee ceasing to act, subject to Section 10.4, shall
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act, nevertheless, shall retain a prior
claim upon all property or funds held or collected by such trustee to secure any amounts then due
it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one or more (but not all)
series, the Issuer, the predecessor trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of
any series as to which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees as co-trustees of the same trust and that each such trustee shall be deemed to be
trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as provided
in this Section 6.10 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible under the provisions
of Section 6.8.
Upon acceptance of appointment by any successor trustee as provided in this Section 6.10, the
Issuer shall mail notice thereof to the holders of Securities of each series affected, by
first-class
34
mail to such holders of Securities of any series for which such successor trustee is acting as
trustee at their last addresses as they shall appear in the Security register. If the Issuer fails
to mail such notice within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the Issuer.
SECTION 6.11
Merger, Conversion, Consolidation or Succession to Business of Trustee
. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, without the execution or filing of any paper; the
giving of any notice or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding,
provided,
that such corporation shall be qualified under Section
310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of Section 6.8.
In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificate shall have the full force that the
Securities of such series or this Indenture have granted to such certificate;
provided
, that the
right to adopt the certificate of authentication of any predecessor trustee or to authenticate
Securities of any series in the name of any predecessor trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.12
Preferential Collection of Claims Against the Issuer
. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act of 1939, excluding any creditor relationship
listed in Section 311(b) of the Trust Indenture Act of 1939.
Any Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust
Indenture Act of 1939 to the extent indicated therein.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1
Evidence of Action Taken by Securityholders
. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by a specified percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee. Proof of
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execution of any instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee
and the Issuer, if made in the manner provided in this Article.
SECTION 7.2
Proof of Execution of Instruments and of Holding of Securities
.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a Securityholder or his agent
or proxy may be proved in the following manner:
The fact and date of the execution by any Holder of any instrument may be proved by the certificate
of any notary public or other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the person executing such instruments acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on behalf of any legal entity other
than an individual, such certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same. The fact of the holding by any holder of an
Unregistered Security of any series, and the identifying number of such Security and the date of
his holding the same, may be proved by the production of such Security or by a certificate executed
by any trust company, bank, banker or recognized securities dealer wherever situated satisfactory
to the Trustee, if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security of such series
bearing a specified identifying number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Unregistered Securities of one or more series
specified therein. The holding by the person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of such holding (1)
another certificate bearing a later date issued in respect of the same Securities shall be
produced, or (2) the Security of such series specified in such certificate shall be produced by
some other person, or (3) the Security of such series specified in such certificate shall have
ceased to be Outstanding. Subject to Sections 6.1 and 6.2, the fact and date of the execution of
any such instrument and the amount and numbers of Securities of any series held by the person so
executing such instrument and the amount and numbers of any Security or Securities for such series
may also be proven in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee for such series or in any other manner which the Trustee for such series may deem
sufficient.
SECTION 7.3
Holders to Be Treated as Owners
. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered
upon the Security register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal of and, subject to
the provisions of this Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of any Unregistered Security and the holder of any Coupon as the absolute owner of
such Unregistered Security or Coupon (whether or not such
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Unregistered Security or Coupon shall be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes and neither the Issuer, the Trustee, nor any agent of
the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so
made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security
or Coupon.
SECTION 7.4
Securities Owned by Issuer Deemed Not Outstanding
. In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series
have concurred in any direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which such determination is
being made or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver only Securities
which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer or any
other obligor on the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly a written
statement by two of its officers (which need not comply with Section 11.5) listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5
Right of Revocation of Action Taken
. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any holder of a Security the
serial number of which is shown by the evidence to be included among the serial numbers of the
Securities the Holders of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so
far as concerns such Security. Except as aforesaid, any such action taken by the holder of any
Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of
such Security and of any Securities issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the holders of all the Securities affected by
such action.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1
Supplemental Indentures Without Consent of Securityholders
. The Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for
one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities
of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or successive successions, and
the assumption by the successor corporation of the covenants, agreements and obligations of the
Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or
provisions as its Board of Directors and the Trustee shall consider to be for the protection of the
holders of Securities or Coupons, and, if the Issuer and Trustee so agree and provide in the
supplemental indenture, to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in this Indenture as
herein set forth;
provided,
that in respect of any such additional covenant, restriction, condition
or provision such supplemental indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of such series to waive such
an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture; or to make such other provisions in regard to matters or
questions arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not adversely affect the interests of the
holders of the Securities;
(e) to provide for the issuance of Securities of any series and related Coupons, if any, as
permitted by Sections 2.1 and 2.3 hereof and to establish the form and term thereof;
(f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with
respect to the Securities of one or more series, or of the Coupons appertaining to such Securities,
and to add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to
the requirements of Section 6.10; and
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(g) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be
necessary to effect and maintain the qualification of this Indenture under the Trust Indenture Act
of 1939, or under any similar Federal statute hereafter enacted, and to add to this Indenture such
other provisions and make such other changes to this Indenture as may be expressly permitted by the
Trust Indenture Act of 1939, or under any similar Federal statute hereafter enacted, excluding
however, the provisions referred to in section 316(a)(2) of the Trust Indenture Act of 1939 or any
corresponding provisions in any similar Federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Issuer in the execution of any such supplemental
indenture, to make any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.2.
SECTION 8.2
Supplemental Indentures With Consent of Securityholders
. With the consent
(evidenced as provided in Article Seven) of the Holders of not less than 66-2/3% in aggregate
principal amount of the Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee, from time to time and at any time, may enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act
of 1939 as in force at the date of execution thereof) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders of the Securities of
each such series or the coupons appertaining to such Securities;
provided,
that no such
supplemental indenture shall (a) extend the final maturity of any Security, or reduce the principal
amount thereof or the method in which amounts of payments of principal or interest thereon are
determined, or reduce the rate or extend the time of payment of interest thereon, or change the
coin or currency or units based on or related to currencies of payment thereof, or reduce any
amount payable on redemption thereof or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or
impair or affect the right of any Securityholder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the Securityholder without
the consent of the holder of each Security so affected, or (b) reduce the aforesaid percentage of
Securities of any series, the consent of the Holders of which is required for any such supplemental
indenture, without the consent of the holder of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of Directors
certified by the secretary or an assistant secretary of the Issuer authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
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Securityholders as aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustees own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 8.2, the Issuer shall mail or publish a notice thereof
by first class mail to the holders of then Outstanding Securities of each series affected thereby
at their addresses as they shall appear on the registry books of the Issuer, and in each case such
notice shall set forth in general terms the substance of such supplemental indenture. Any failure
of the Issuer to mail or publish such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 8.3
Effect of Supplemental Indenture
. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the holders of Securities
of each series affected thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms and conditions of
any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 8.4
Documents to Be Given to Trustee
. The Trustee, subject to the provisions of
Sections 6.1 and 6.2, may receive an Officers Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture.
SECTION 8.5
Notation on Securities in Respect of Supplemental Indentures
. Securities of
any series authenticated and delivered after the execution of any supplemental indenture pursuant
to the provisions of this Article may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture. If the Issuer or the Trustee
shall so determine, new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION
9.1
Issuer May Consolidate, Etc., on Certain Terms
. The Issuer covenants that it
will not merge or consolidate with any other corporation or sell or convey all or
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substantially all of its assets to any Person, unless (i) either the Issuer shall be the continuing
corporation, or the successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall be a corporation
organized under the laws of the United States of America or any State thereof and shall expressly
assume the due and punctual payment of the principal of and interest on all the Securities and
Coupons, according to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed or observed by the Issuer, by
supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, and (ii) the Issuer or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be in default in any
material respect in the performance of any such covenant or condition.
SECTION 9.2
Successor Corporation Substituted
. In case of any such consolidation, merger,
sale or conveyance, and following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the Securities
issuable hereunder, together with any Coupons appertaining thereto, which theretofore shall not
have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities, together
with any Coupons appertaining thereto, which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities, together with any
Coupons appertaining thereto, which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the Securities, together with any Coupons
appertaining thereto, so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Securities, together with any Coupons appertaining thereto, theretofore or
thereafter issued in accordance with the terms of this Indenture as though all of such Securities
and Coupons had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology
and form (but not in substance) may be made in the Securities and Coupons thereafter to be issued
as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way of lease), the Issuer
or any successor corporation which shall theretofore have become such in the manner described in
this Article shall be discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.3
Opinion of Counsel to Trustee
. The Trustee, subject to the provisions of
Sections 6.1 and 6.2, may receive an Opinion of Counsel, prepared in accordance with Section 11.5,
as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
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ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1
Satisfaction and Discharge of Indenture; Defeasance
.
(A) If at any time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities or Coupons which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (b) the Issuer shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated and all unmatured Coupons appertaining thereto
(other than any Securities or Coupons of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.9) or (c) (i) all the
Securities of such series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within one year or are to
be or may be called for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and (ii) the Issuer shall have irrevocably deposited or
caused to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance with Section 10.4) or U.S.
Government Obligations, maturing as to principal and interest in such amounts and at such times as
will insure the availability of cash (without consideration of any reinvestment of such principal
or interest), or a combination of U.S. Government Obligations and cash sufficient to pay at
maturity or upon redemption all Securities of such series not theretofore delivered to the Trustee
for cancellation, including principal and interest due or to become due to such date of maturity as
the case may be, and if, in any such case, the Issuer shall also pay or cause to be paid all other
sums payable hereunder by the Issuer with respect to Securities of such series and Coupons
appertaining thereto, then this Indenture shall cease to be of further effect with respect to
Securities of such series and Coupons appertaining thereto (except as to (i) rights of registration
of transfer and exchange, and the Issuers right of optional redemption, (ii) substitution of
Securities or Coupons for mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of holders of Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, including those
under Section 6.6, (v) the rights of the Securityholders of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any of them, and (vi)
the obligations of the Issuer under Section 3.2), and the Trustee, on demand of the Issuer
accompanied by an Officers Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series;
provided
, that the rights of holders of the Securities
and Coupons to receive amounts in respect of principal of and interest on the Securities and
Coupons held by them shall not be delayed longer than required by then-applicable mandatory rules
or policies of any securities exchange upon which the Securities are listed. Subject to Section
10.4, all money deposited with the Trustee pursuant to (ii) above shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
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Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting
as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal, premium, if any, and interest for whose payment such money has been deposited with the
Trustee. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or the Securities and Coupons of
such series.
(B) The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officers Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of a series and Coupons appertaining thereto on the 121st day after the date
of the deposit referred to in subparagraph (a) below, and the provisions of this Indenture with
respect to the Securities of such series and Coupons appertaining thereto shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of Securities of such
series, and of Coupons appertaining thereto, (ii) substitution of Securities and Coupons for
mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of holders of
Securities and Coupons appertaining thereto to receive, from the trust fund described in
subparagraph (a) below, payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights of the holders to
receive sinking fund payments, if any, (iv) the rights, obligation, duties and immunities of the
Trustee hereunder, including those under Section 6.6, (v) the rights of the holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (vi) the obligations of
the Issuer under Section 3.2), and the Trustee, at the expense of the Issuer, shall at the Issuers
request, execute proper instruments acknowledging the same, if
(a) with reference to this provision, the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the Securities of such series and
Coupons appertaining thereto (i) cash, or (ii) U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure the availability of cash or
(iii) a combination thereof, in an amount sufficient, in the
opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, to pay (A) the principal and interest on all Securities of such series and Coupons
appertaining thereto on the date or dates that such principal or interest is due and payable and
(B) any mandatory sinking fund payments on the dates or dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute a default under, any
agreement or instrument to which the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an opinion of independent legal counsel satisfactory to
the Trustee to the effect that holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on the
43
same amount and in the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(d) the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for relating to the defeasance contemplated by
this provision have been complied with, and the Opinion of Counsel shall also state that such
deposit does not violate applicable law.
SECTION 10.2
Application by Trustee of Funds Deposited for Payment of Securities
. Subject
to Section 10.4, all moneys deposited with the Trustee pursuant to Section 10.1 shall be held in
trust and applied by it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular Securities of such series
and of Coupons appertaining thereto for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent required by law.
SECTION 10.3
Repayment of Moneys Held by Paying Agent
. In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such series of Securities,
upon demand of the Issuer, shall be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
.
Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the
principal of or interest on any Security of any series or for any other purpose and not applied but
remaining unclaimed for two years after the date upon which such principal or interest shall have
become due and payable, upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property law, shall be repaid
to the Issuer by the Trustee for such series or such paying agent, and the holder of the Security
of such series, unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, shall thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease;
provided
, the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys deposited with it for any
payment or other purpose (a) in respect of Registered Securities of any series, at the expense of
the Issuer, may mail by first class mail to Holders of such Securities at their addresses as they
shall appear on the Security Register, and (b) in respect of Unregistered Securities of any series,
at the expense of the Issuer may cause to be published once, in an Authorized Newspaper, notice,
that such moneys remain and that, after a date specified therein, which shall not be less than
thirty days from the date of such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5
Indemnity for U.S. Government Obligations
. The Issuer shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the
44
U.S. Government Obligations deposited pursuant to Section 10.1 or the principal or interest
received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1
Incorporators, Shareholders, Officers and Directors of Issuer Exempt from
Individual Liability
. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security or Coupon appertaining thereto, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any
past, present or future shareholder, officer, director or employee, as such, of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and any Coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and any Coupons appertaining thereto.
SECTION 11.2
Provisions of Indenture for the Sole Benefit of Parties and Securityholders
.
Nothing in this Indenture or in the Securities and any Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the holders of the Securities or Coupons, any legal or
equitable right, remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the parties hereto and
their respective successors and of the holders of the Securities.
SECTION 11.3
Successors and Assigns of Issuer Bound by Indenture
. All the covenants,
stipulations, promises and agreements in this Indenture contained by
or on behalf of the Issuer
shall bind its successors and assigns, whether so expressed or not.
SECTION 11.4
Notices and Demands on Issuer, Trustee and Securityholders
. Any notice or
demand which by any provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to
The Progressive Corporation, 6300 Wilson Mills Road, Mayfield Village, Ohio 44143, Attn: Treasurer.
Any notice, direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made
at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid,
to each holder entitled thereto, at his last address as it appears in the registry books or as so
filed. Any notice which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given when mailed, whether or not the Holder receives the notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
45
respect to other Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5
Officers Certificates and Opinions of Counsel; Statements to Be Contained
Therein
. Upon any application or demand by the Issuer to the Trustee to take any action under
any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (a)
a statement that the person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous. Any certificate, statement or
opinion of counsel may be based, insofar as it relates to factual matters, information with respect
to which is in the possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the
46
accounting matters upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with the Trustee
shall contain a statement that such firm is independent.
SECTION 11.6
Payments Due on Saturdays, Sundays and Holidays
. If the date of maturity of
interest on or principal of the Securities of any series or any Coupons appertaining thereto or the
date fixed for redemption or repayment of any such Security or Coupon shall not be a Business Day,
then payment of interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption, and no interest shall accrue for the period after such maturity date.
SECTION 11.7
Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
. If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, of the Trust Indenture Act of 1939, such required provision shall control.
SECTION 11.8
New York Law to Govern
. This Indenture and each Security and Coupon shall be
deemed to be a contract under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State, except as may otherwise be required by
mandatory provisions of law.
SECTION 11.9
Counterparts
. This 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.
SECTION 11.10
Effect of Headings
. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 11.11
Securities in Foreign Currencies
. Whenever this Indenture provides for any
action by, or the determination of any of the rights of, or any distribution to, holders of
Securities denominated in United States dollars and in any other currency or currency unit, in the
absence of any provision to the contrary in the form of such Security of any particular series, any
amount in respect of any Security denominated in a currency or currency unit other than United
States dollars shall be treated for any such action or distribution as that amount of United States
dollars that could be obtained for such amount on such reasonable basis of exchange and as of such
date as the Issuer may reasonably specify in a written notice to the Trustee or in the absence of
such written notice, as the Trustee shall so determine.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1
Applicability of Article
. The provisions of this Article shall be applicable
to the Securities of any series which are redeemable before their maturity or to any
47
sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 12.2
Notice of Redemption; Partial Redemptions
. Notice of redemption to the
holders of Securities of any series to be redeemed as a whole or in part at the option of the
Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid at
least 30 days and not more than 60 days prior to the date fixed for redemption to such holders of
Securities of such series at their last addresses as they shall appear upon the Security Register.
Any notice which is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or
any defect in the notice to the holder of any Security of a series designated for redemption, as a
whole or in part, shall not affect the validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such Holder shall specify the principal amount of each Security of
such series held by such Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment, that payment will be made upon presentation and surrender of
such Securities, and, in the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that, on and after said
date, interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on and after the date
fixed for redemption, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Issuer
shall be given by the Issuer or, at the Issuers request, by the Trustee in the name and at the
expense of the Issuer.
On the redemption date specified in the notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If any or all of the outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officers Certificate stating the date of redemption and the aggregate principal
amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such
manner as at the time shall be required by law or, if no such legal requirement shall then exist,
in such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any integral multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities of such series selected for
48
redemption and, in the case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of any series shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3
Payment of Securities Called for Redemption
. If notice of redemption has been
given as above provided, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
said date (unless the Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and the unmatured Coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 6.5 and 10.4, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities, together with all Coupons
appertaining thereto maturing after the date fixed for redemption, at a place of payment specified
in said notice, said Securities and Coupons or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon
to the date fixed for redemption;
provided
that any semiannual payment of interest becoming due on
the date fixed for redemption shall be payable in the case of Securities with Coupons attached
thereto, to the bearers of the Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the holders of such Securities registered as such on the relevant record
date subject to the terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal shall, until paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
If any Security with Coupons attached thereto is surrendered for redemption and is not accompanied
by all such Coupons maturing after the date fixed for redemption, the surrender of such missing
Coupon or Coupons may be waived by the Issuer and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities of such series, together with all Coupons, if any,
appertaining thereto, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
SECTION 12.4
Exclusion of Certain Securities from Eligibility for Selection for Redemption
.
Securities shall be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an authorized
49
officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 12.5
Mandatory and Optional Sinking Funds
. The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a mandatory
sinking fund payment, and any payment in excess of such minimum amount provided for by the terms
of Securities of any series is herein referred to as an optional sinking fund payment. The date
on which a sinking fund payment is to be made is herein referred to as the sinking fund payment
date.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series
of Securities in cash, the Issuer at its option may (a) deliver to the Trustee Securities of such
series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10,(b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of such series. Securities
so delivered or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the 60
th
day next preceding each sinking fund payment date for any series,
the Issuer will deliver to the Trustee a written statement (which need not contain the statements
required by Section 11.5) signed by an authorized officer of the Issuer (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series, (b) if applicable, stating that none of the
Securities of such series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have occurred (which have not
been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or
before the next succeeding sinking fund payment date. Any Securities of such series to be credited
and required to be delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered
for cancellation pursuant to Section 2.10 to the Trustee with such written statement (or reasonably
promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such 60
th
day, to deliver
such written statement and Securities specified in this paragraph, if any, shall not constitute a
default, but shall constitute, on and as of such date, the irrevocable election of the Issuer (i)
that the mandatory sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or credit
50
Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the
next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request) with
respect to the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such series at the sinking
fund redemption price, together with accrued interest to the date fixed for redemption. If such
amount shall be $50,000 or less and the Issuer makes no such request, then it shall be carried over
until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in
Section 12.2, for redemption on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and (if requested in writing by
the Issuer) shall inform the Issuer of the serial numbers of the Securities of such series (or
portions thereof) so selected. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any default or Event of Default shall occur, and any moneys thereafter paid into
the sinking fund, during the continuance of such default or Event of Default, shall be deemed to
have been collected under Article Five and held for the payment of all such Securities. In case
such Event of Default shall have been waived as provided in Section 5.10 or the default cured on or
before the 60
th
day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in accordance with
this Section to the redemption of such Securities.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 13.1
Securities Subordinate to Senior Debt
. The Issuer, for itself, its successors
and assigns, covenants and agrees, and each Holder likewise covenants and agrees by his acceptance
thereof, that the obligations of the Issuer to make any payment on account of the principal of and
interest on each and all of the Securities shall be subordinate and junior, to the extent and in
the manner hereinafter set forth, in right of payment and upon liquidation to the Issuers
obligations to the holders of Senior Debt of the Issuer.
SECTION 13.2
Issuer Not to Pay if Senior Debt of Issuer is in Default
. No payment on
account of principal or interest on the Securities shall be made by the Issuer unless full payment
of amounts then due for principal (and premium, if any), sinking funds, and interest on Senior Debt
of the Issuer has been made or duly provided for in money or moneys worth in accordance with its
terms. No payment on account of principal or interest on the Securities shall be made by the
Issuer if, at the time of such payment or immediately after giving effect thereto, there shall have
occurred an event of default with respect to any Senior Debt of the Issuer or in any instrument
under which the same is outstanding, permitting the holders thereof (or a trustee on behalf of the
holders thereof) to accelerate the maturity thereof, or an event that, with the giving of notice or
the passage of time or both, would constitute such event of default, and such event of default
shall not have been cured or waived.
51
SECTION
13.3
Payment Over of Proceeds upon Dissolution, Default, Etc., of the Issuer
. The
Issuer agrees that upon (i) the occurrence of any Senior Debt event of default referred to in
Section 13.2 above that shall not have been cured or waived or (ii) any payment or distribution of
assets of the Issuer of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or total or partial liquidation or reorganization of
the Issuer, whether voluntary or involuntary or in bankruptcy, insolvency, receivership,
conservatorship or other proceedings, all principal (and premium, if any), sinking fund payments
and interest due or to become due upon all Senior Debt of the Issuer shall first be paid in full,
or payment thereof provided for in money or moneys worth in accordance with its terms, before any
payment is made on account of the principal of or interest on the indebtedness evidenced by the
Securities, and upon any such dissolution or winding up or liquidation or reorganization, any
payment or distribution of assets of the Issuer of any kind or character, whether in cash, property
or securities (other than securities of the Issuer or any other Person provided for by a plan of
reorganization or readjustment, the payment of which is subordinate, at least to the extent
provided in this Section with respect to the Securities, to the payment in full of all Senior Debt,
provided
the rights of the Holders of the Senior Debt are not altered by such reorganization or
readjustment), to which the Holders of the Securities would, except for the provisions hereof, be
entitled, shall be paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, or by the Holders or by the
Trustee under this instrument if received by them or it, directly to the holders of Senior Debt of
the Issuer (
pro rata
to each such holder on the basis of the respective amounts of Senior Debt held
by such holder) or their representatives, to the extent necessary to pay all Senior Debt of the
Issuer in full, in money or moneys worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt, before any payment or distribution is made
to the Holders of the indebtedness evidenced by the Securities or to the Trustee or to any paying
agent (subject, in the case of the Trustee or any paying agent, to the provisions of Section 6.5)
under this instrument.
In the event that any payment or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities, including any such payment or distribution that may be
payable or deliverable by reason of the payment of any other indebtedness of the Issuer being
subordinated to the payment of the Securities, not permitted by the foregoing, shall be received by
the Trustee or any Holder before all Senior Debt of the Issuer is paid in full, or provision is
made for such payment, in accordance with its terms, such payment or distribution shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Debt
of the Issuer (
pro rata
to each such holder on the basis of the respective amounts of Senior Debt
held by such holder) or their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such Senior Debt of the
Issuer may have been issued, as their respective interests may appear, or to any receiver, trustee
in bankruptcy, liquidating trustee, agent or other person making such distribution, for application
to the payment of all Senior Debt of the Issuer remaining unpaid to the extent necessary to pay all
such Senior Debt of the Issuer in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to the holders of such Senior Debt of the Issuer.
The consolidation of the Issuer with, or the merger of the Issuer into, another corporation or the
liquidation or dissolution of the Issuer following the conveyance or transfer of its properties and
assets substantially as an entirety to another Person upon the terms and conditions set forth in
52
Article Nine shall not be deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section if the corporation formed by such consolidation or into which the Issuer
is merged or the Person that acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, as a part of such consolidation, merger,
conveyance or transfer, shall comply with the conditions set forth in Article Nine.
SECTION 13.4
Subrogation to Rights of Holders of Senior Debt
. Subject to the prior payment
in full of all Senior Debt of the Issuer, the Holders shall be subrogated (equally and ratably with
the holders of all indebtedness of the Issuer that by its express terms is subordinated to
indebtedness of the Issuer to substantially the same extent as the Securities are subordinated and
is entitled to like rights of subrogation) to the rights of the holders of such Senior Debt to
receive payments or distributions of cash, property and securities applicable to the Senior Debt of
the Issuer until the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions in respect of the Senior Debt of the Issuer of any cash, property or
securities to which the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, as between the Issuer, its
creditors other than holders of Senior Debt of the Issuer and the Holders of the Securities, shall
be deemed to be a payment or distribution by the Issuer to or on account of the Senior Debt of the
Issuer; and no payments or distributions to the Trustee or the Holders of the Securities of cash,
property or securities that are applied to the satisfaction of Senior Debt of the Issuer, as the
case may be, by virtue of the subordination herein provided for, as between the Issuer, its
creditors other than the holders of Senior Debt of the Issuer and the Holders of the Securities,
shall be deemed to be a payment by the Issuer to or on account of the Securities.
SECTION 13.5
Reliance on Certificate of Liquidating Agent
. Upon any payment or
distribution of assets of the Issuer referred to in this Article, the Trustee, subject to the
provisions of Section 6.1, and the Holders shall be entitled to rely upon an order or decree made
by any court of competent jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of the trustee in
bankruptcy, receiver, conservator, assignee for the benefit of creditors or other person making
such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the persons entitled to participate in such distribution, the holders of the Senior
Debt, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent or to this Article.
SECTION 13.6
Payment Permitted if No Default
. Nothing contained in this Article or
elsewhere in this Indenture, or in any of the Securities, shall prevent (a) the Issuer, at any time
except during the pendency of any dissolution, winding up, liquidation or reorganization or other
similar proceedings referred to in Section 13.3 or under the conditions described in Section 13.2,
from making payments at any time of principal of (or premium, if any) or interest on the Securities
or (b) the application by the Trustee or any paying agent of any moneys deposited with it hereunder
to the payment of or on account of the principal of (or premium, if any) or interest on
Securities, if, at the time of such application, the Trustee or such paying agent, as the case may
be, did not have the written notice provided for in Section 13.7 of any event prohibiting the
making of such deposit or if, at the time of such deposit (whether or not in trust) by the Issuer
53
with the Trustee or any paying agent (other than the Issuer), such payment would not have been
prohibited by the provisions of this Article.
SECTION 13.7
Trustee Not Charged with Knowledge of Prohibition
. Anything in this Article
or elsewhere in this Indenture contained to the contrary notwithstanding, the Trustee shall not at
any time be charged with knowledge of the existence of any facts that would prohibit the making of
any payment of moneys to or by the Trustee and, subject to the provisions of Section 6.1, shall be
entitled to assume that no event of default or prohibition specified in Section 13.2 has happened,
until the Trustee shall have received an Officers Certificate of the Issuer to that effect or
notice in writing signed by or on behalf of the holders, or their representatives, of at least
$10,000,000 in principal amount of Senior Debt of the Issuer who shall have been certified by the
Issuer or otherwise established to the reasonable satisfaction of the Trustee to be such holders or
representatives or from any trustee under any indenture pursuant to which such Senior Debt shall be
outstanding.
SECTION 13.8
Provisions are Solely to Define Relative Rights
. The provisions of this
Article are and are intended solely for the purpose of defining the relative rights of the Holders
on the one hand, and the holders of the Senior Debt on the other. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as
among the Issuer, its creditors other than holders of Senior Debt and the Holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional (and which, subject
to the rights under this Article of the holders of Senior Debt, is intended to rank equally with
all other general obligations of the Issuer), to pay to the Holders of the Securities the principal
of (and premium, if any, on) and interest on the Securities as and when the same shall become due
and payable in accordance with their terms; (b) affect the relative rights against the Issuer of
the Holders of the Securities and creditors of the Issuer other than the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Debt, to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 13.9
No Waiver of Subordination Provisions
. No right of any present or future
holder of any Senior Debt of the Issuer to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or
by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Issuer with the terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
SECTION 13.10
Trustee to Effectuate Subordination
. Each Holder by his acceptance of a
Security or Securities authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt
and shall not be liable to any such holders or creditors if it in good faith mistakenly shall pay
over or distribute to or on behalf of Holders of the Securities or the Issuer moneys or assets to
which any holder of Senior Debt shall be entitled by virtue of this Article.
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SECTION 13.11
Rights of Trustee as Holder of Senior Debt
. The Trustee shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt that may at any time be
held by it, to the same extent as any other holder of Senior Debt, as the case may be, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such holder.
SECTION 13.12
Article Applicable to Paying Agents
. In case at any time any paying agent
other than the Trustee shall have been appointed by the Issuer with respect to a series of
Securities and be then acting hereunder, the term Trustee as used in this Article shall in such
case (unless the context shall otherwise require) be construed as extending to, and including such
paying agent within its meaning as fully for all intents and purposes as if such paying agent were
named in this Article in addition to or in place of the Trustee;
provided
,
however
, that Sections
13.8 and 13.11 shall not apply to the Issuer or any Affiliate of the Issuer if it or such Affiliate
acts as paying agent; and
provided
,
further
, that no paying agent (other than the Issuer or any
Affiliate of the Issuer if it or such Affiliate acts as paying agent) shall be deemed to owe any
fiduciary duty to the holders of Senior Debt or shall be liable to any such holder if it shall pay
over or distribute to or on behalf of Holders of Securities or the Issuer or any other Person
moneys or assets to which any holder of Senior Debt shall be entitled by virtue of this Article or
otherwise.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
June ___, 2007.
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THE PROGRESSIVE CORPORATION
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[Corporate Seal]
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By:
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Name:
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Title:
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Attest:
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By:
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Name:
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Charles E. Jarrett
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Title:
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Vice President, Secretary
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and Chief Legal Officer
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THE BANK OF NEW YORK
TRUST COMPANY, N.A., as Trustee
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By:
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Name:
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Title:
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Authorized Signatory
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STATE OF OHIO
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)
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ss.:
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COUNTY OF CUYAHOGA
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On this ___day of ___, 2007, before me personally came
to me personally
known, who, being by me duly sworn, did depose and say that he resides at
, 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.
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STATE OF ILLINOIS
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ss.:
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COUNTY OF COOK
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On this
___day of ___, 2007, before me personally came Linda Garcia to me personally known,
who, being by me duly sworn, did depose and say that she resides at
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that she is an authorized officer of The Bank of New York Trust Company, N.A., one of the
corporations described in and which executed the above instrument, and that she signed her name
thereto by like authority.
[Notarial Seal]
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