Exhibit 1.1
EXECUTION VERSION
The
Hanover Insurance Group, Inc.
$375,000,000 4.500% Notes Due 2026
Underwriting Agreement
April 5, 2016
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
Lloyds Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
The Hanover Insurance
Group, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, an aggregate of $375,000,000 principal amount of the 4.500% Notes due 2026 of the Company, specified above (the “Securities”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the
“Act”), on Form S-3 (File No. 333-210328) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary
prospectus (including any preliminary
prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of
such registration statement, including all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing
Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has
been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 2:51 p.m. (New York City time) on the date of this Agreement;
the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule II(a) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken
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together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package or an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; and
no such documents were filed with the Commission since the Commission’s close of business on the New York Business Day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule
II(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Pricing Prospectus, in each case except as would not be reasonably expected to have, individually or in the aggregate, a material adverse effect, on the prospects, general affairs,
management, financial position,
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stockholders’ equity or results of operations of the Company and its consolidated subsidiaries considered as one enterprise (a “Material Adverse Effect”); and, since the respective
dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in the long term debt of the Company and its subsidiaries on a consolidated basis or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its consolidated subsidiaries as one enterprise,
otherwise than as set forth or contemplated in the Pricing Prospectus;
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such jurisdiction, except to the extent that the failure to be so qualified and in good standing would not be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect; and each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction, except to the extent that the failure to be so
qualified and in good standing would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect;
(h)
The Company has an authorized capitalization as set forth in the Pricing Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and all of the
issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(i) This Agreement has been duly authorized, executed and delivered by the
Company;
(j) The Securities have been duly authorized and, when issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the indenture to be dated as of April 8, 2016 (the “Base Indenture”) between
the Company and U.S. Bank National Association, as Trustee (the “Trustee”), as supplemented by the first supplemental indenture to be dated as of April 8, 2016 between the Company and the Trustee (the “Supplemental
Indenture”, and together with the Base Indenture, the “Indenture”)
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under which they are to be issued, which are substantially in the form filed as exhibits to the Registration Statement; the Indenture has been duly authorized and duly qualified under the Trust
Indenture Act; the Indenture, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Securities and the Indenture will conform to the descriptions thereof in the Pricing Disclosure Package
and the Prospectus;
(k) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, (ii) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company and (iii) will not result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; except with respect to clauses (i) and (iii), for such conflicts, breaches,
violations or defaults which would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or a material adverse effect on the issuance or sale of the Securities; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture
except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(l) Neither the Company nor any of its subsidiaries (i) is in violation of its
Certificate of Incorporation or By-laws or (ii) is in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound, except with respect to clause (i) (solely with respect to the subsidiaries of the Company) and clause (ii), for such violations or defaults that would not
be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or a material adverse effect on the issuance or sale of the Securities;
(m) The statements set forth in the Pricing Prospectus and the Prospectus under the captions “Description of Notes” and
“Description of Debt Securities”, insofar as they purport to constitute a summary of the terms of the Securities, under the caption “Material United States Federal Income Tax Consequences”, and under the caption
“Underwriting”, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair in all material respects;
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(n) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which would be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect; and, to the Company’s knowledge, other than as set forth in the Pricing Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will
not be an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(p) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes
of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known
seasoned issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Act) of the Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(q) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Pricing
Prospectus and the Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in
accordance with U.S. generally accepted accounting principles throughout the periods indicated and conform in all material respects with such generally accepted accounting principles, except as otherwise noted therein; and the supporting schedules
included or incorporated by reference in the Registration Statement present fairly in all material respects the information required to be stated therein;
(r) To the Company’s knowledge, PricewaterhouseCoopers LLP, who have audited certain financial statements of the Company and its
subsidiaries, and have audited the Company’s internal control over financial reporting are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Act and the applicable rules
and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board;
(s) The Company maintains a
system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Company’s principal executive officer
and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
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statements for external purposes in accordance with generally accepted accounting principles. To the Company’s knowledge, the Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses in its internal control over financial reporting;
(t) Since the date of
the latest audited financial statements included or incorporated by reference in the Pricing Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial reporting;
(u) The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and to the Company’s knowledge such disclosure controls and procedures are effective;
(v) Each of the Company’s subsidiaries that is engaged in the business of insurance or reinsurance (each an “Insurance
Subsidiary”, collectively the “Insurance Subsidiaries”) is duly licensed to conduct an insurance or a reinsurance business, as the case may be, under the insurance statutes of each jurisdiction in which the conduct of its business
requires such licensing, except where the failure to be so licensed would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The Insurance Subsidiaries (i) have made all required filings under
applicable insurance statutes in each jurisdiction where such filings are required, (ii) have all other necessary authorizations, approvals, orders, consents, certificates, permits, registrations and qualifications of and from all insurance
regulatory authorities necessary to conduct its business as described in the Pricing Prospectus and the Prospectus and (iii) have not and the Company has not received any notification from any insurance regulatory authority to the effect that
any additional authorization, approval, order, consent, certificate, permit, registration or qualification is needed to be obtained by the Company or any of its Insurance Subsidiaries, except in each case as would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. No insurance regulatory authority having jurisdiction over the Company or any of its Insurance Subsidiaries has (i) issued any order or decree impairing, restricting or prohibiting
the continuation of the business of the Company or any of the Insurance Subsidiaries as presently conducted or (ii) issued any order or decree impairing, restricting or prohibiting the payment of dividends by any Insurance Subsidiary to its
parent, except in each case for such orders or decrees as would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect;
(w) The most recent statutory annual and interim balance sheets and income statements of each Insurance Subsidiary have been prepared, in all
material respects, in conformity with statutory accounting principles and practices required or permitted by the appropriate insurance regulatory authority of the jurisdiction of domicile of each such Insurance Subsidiary, and present fairly, in all
material respects, on a statutory basis the financial position of such Insurance Subsidiary as of the dates thereof, and the results of operations of such Insurance Subsidiary for the periods covered thereby;
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(x) The interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto;
(y) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, agent, affiliate or
other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or
taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity
or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an
offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit,
including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, and maintain and enforce, policies and procedures designed to promote
and ensure compliance with all applicable anti-bribery and anti-corruption laws;
(z) The operations of the Company and its subsidiaries
are and, since January 1, 2013, have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or
enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened;
(aa) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer or employee, agent, or
affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, (including, without limitation, the
Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United
Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company, any of its subsidiaries located, organized or resident in a country or
territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a “Sanctioned Country”); and the Company will not knowingly or
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with reason to know, in violation of Sanctions, directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions,
(ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter,
initial purchaser, advisor, investor or otherwise) of Sanctions. Except as disclosed in the periodic reports filed with the Commission, for the past 5 years, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly
engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country; and
(bb) Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described in each
of the Registration Statement, the Pricing Prospectus and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of 99.117% of the principal amount thereof, plus accrued interest, if any, from April 8, 2016 to the Time of Delivery (as defined below)
hereunder, the principal amount of Securities set forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the
authorization by you of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company will deliver the Securities to J.P. Morgan Securities LLC, for the account of each
Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to J.P. Morgan Securities LLC at least forty-eight hours in advance,
by causing DTC to credit the Securities to the account of J.P. Morgan Securities LLC at DTC. The Company will cause the certificates representing the Securities to be made available to J.P. Morgan Securities LLC for checking at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be 9:30 a.m., New York City time, on April 8,
2016, or such other time and date as J.P. Morgan Securities LLC and the Company may agree upon in writing. Such time and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including
the cross-receipt for the Securities and
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any additional documents reasonably requested by the Underwriters pursuant to Section 8(k) hereof, will be delivered at the offices of Underwriters’ counsel: Willkie Farr &
Gallagher LLP, 787 Seventh Avenue, New York, New York 10019 (the “Closing Location”), and the Securities will be delivered at the Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at 5:00 p.m.,
New York City time, on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second New York Business Day following the date of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of
Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely a description of the Securities, in a form approved by you and to file such term sheet pursuant to Rule
433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Securities by the Underwriters (references herein to the Registration Statement
shall include any such amendment or new registration statement);
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(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved
by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you
promptly after reasonable notice thereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the initial effective
date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company will file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities, in a
form satisfactory to you. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement and any of the Securities remain unsold by the Underwriters, the Company will, if it has not already done so,
file a new shelf registration statement relating to the Securities, in a form satisfactory to you and will use its commercially reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal
Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References herein to the
Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to qualify as a foreign corporation, to file a general consent to service of process in any jurisdiction or to take any action that would subject it to taxation in any
jurisdiction where it is not now so subject;
(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your request to file
such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will
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correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written
and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(f) To
make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including Rule 158);
(g) During the period beginning from the date hereof and continuing to and including the later of the Time of Delivery and such earlier time
as you may notify the Company, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder of, any securities of the Company that are substantially similar to the
Securities;
(h) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under
the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act; and
(i) To use the
net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”.
6. (a)(i) The Company represents and agrees that, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof,
without the prior consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, other than
one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of Securities, which in their final form will not be inconsistent with the final term sheet, it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus; and
(iii) any such free writing prospectus the
use of which has been consented to by the Company and the Representatives (including the final term sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) hereto;
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(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and
furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Indenture, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(d) hereof, including the reasonable fees
and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities rating services for rating the Securities; (v) the filing fees incident
to, and the fees and disbursements of counsel for the Underwriters in connection with, any required review by the Financial Industry Regulatory Authority, Inc. of the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (viii) all fees and expenses in connection
with listing the Securities on the Exchange; and (ix) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; provided, however, that the fees and
disbursements of counsel for the Underwriters pursuant to clauses (iii) and (v) shall not exceed $25,000 in the aggregate. It is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
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8. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Company herein are, at and as of the Time of Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Willkie Farr & Gallagher LLP, counsel for the Underwriters, shall have furnished to you their written opinion and Negative
Assurance Letter, dated the Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Ropes & Gray LLP, counsel for the Company, shall have furnished to you
their written opinion and Negative Assurance Letter, in form and substance reasonably satisfactory to you, dated the Time of Delivery;
(d) Charles F. Cronin, Vice President and Group Counsel, Corporate, of the Company, shall have furnished to you his written opinion and
Negative Assurance Letter, in form and substance reasonably satisfactory to you, dated the Time of Delivery;
(e) Ropes & Gray
LLP shall have furnished to you their written opinion regarding the Company’s Chaucer Holdings Limited subsidiary, in form and substance reasonably satisfactory to, dated the Time of Delivery;
(f) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date
of each post-effective amendment to the Registration Statement, if any, filed subsequent to the date of this Agreement and also at the Time of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to both you and PricewaterhouseCoopers LLP, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
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(g) (i) Neither the Company nor any of its subsidiaries, taken as one enterprise, shall have
sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the
Pricing Prospectus there shall not have been any change in the long term debt of the Company and any of its subsidiaries on a consolidated basis or any change, or any development involving a prospective change, in or affecting, in any material
respect, the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its consolidated subsidiaries taken as one enterprise, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering, sale or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
(h) On or after the Applicable Time (i) no downgrading
shall have occurred in the rating accorded the Company’s debt securities or the financial strength or claims paying ability of the Company or any Insurance Subsidiary by any “nationally recognized statistical rating organization”, as
that term is defined by the Commission in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of
the Company’s debt securities or the financial strength or claims paying ability of the Company or any Insurance Subsidiary;
(i) On
or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company’s securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or
crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with
the public offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(j) The
Company shall have complied with the provisions of Section 5(e) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;
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(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its obligations hereunder to be
performed at or prior to such time, as to the matters set forth in subsections (a), (g), (h) and (i) of this Section and as to such other matters as you may reasonably request;
(l) The Representatives shall have received satisfactory evidence of the good standing of the Company, The Hanover Insurance Company, Citizens
Insurance Company of America, Opus Investment Management, Inc. and Chaucer Holdings Ltd. in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each
case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions; and
(m)
The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated
by the Trustee.
9. (a) The Company will indemnify and hold harmless each Underwriter, against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will, severally and not jointly, indemnify and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or
are
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based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein, it being
understood and agreed that the only such information consists of the following sentences under the caption “Underwriting (Conflicts of Interest)” in the Preliminary Prospectus and the Prospectus: the third sentence of the fourth paragraph,
the second and third sentences of the fifth paragraph and the first sentence of the sixth paragraph; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in
this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the
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allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective purchase obligations hereunder and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this
Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it has
agreed to purchase hereunder, you may in your discretion arrange for you or another party or other parties to purchase such Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange
for the purchase of such
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Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Securities on
such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Securities, or the Company notifies you that it has so arranged for the purchase of such Securities,
you or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount of Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate principal amount of Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective
indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Securities.
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12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall
not then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason, the Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities,
but the Company shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
13. In all
dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex,
electronic mail or facsimile transmission to you as the representatives in care of J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: 212-834-6081); Attention: Investment Grade Syndicate Desk – 3rd floor, Wells Fargo
Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202 (fax: 704-410-0326), Attention: Transaction Management, and Lloyds Securities Inc., 1095 Avenue of the Americas, New York, NY 10036, (fax: 212-479-2882), (email:
FixedIncomeDesk@lbusa.com) Attention: Fixed Income, and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company by you upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are
required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the
Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement.
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16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and
(iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect,
or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. Any review by any Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of such Underwriter and shall not be on behalf of the Company or any other person.
17. This
Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
18.
THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK. The Company agrees that any suit or proceeding arising in respect of this agreement or
our engagement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the Company
agrees to submit to the jurisdiction of, and to venue in, such courts.
19. The Company and each of the Underwriters hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall together constitute one and the same instrument.
21. Notwithstanding anything
herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses)
provided to the Company relating to that treatment and structure, without the Underwriters, imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
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If the foregoing is in accordance with your understanding, please sign and return to us six counterparts hereof,
and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
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Very truly yours,
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The Hanover Insurance Group, Inc.
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By:
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/s/ Eugene M. Bullis
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Name:
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Eugene M. Bullis
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Title:
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Executive Vice President &
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Chief Financial Officer
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|
|
|
|
|
Accepted as of the date hereof:
|
|
|
|
J.P. Morgan Securities LLC
|
|
Wells Fargo Securities, LLC
|
|
Lloyds Securities Inc.
|
|
|
|
By: J.P. Morgan Securities LLC
|
|
|
|
|
By:
|
|
/s/ Robert Bottamedi
|
|
Name:
|
|
Robert Bottamedi
|
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Title:
|
|
Vice President
|
|
|
|
On behalf of each of the Underwriters
|
[Signature Page to
Underwriting Agreement]
SCHEDULE I
|
|
|
|
|
|
|
Underwriter
|
|
Principal Amount
of Securities to be
Purchased
|
|
|
J.P. Morgan Securities LLC
|
|
$
|
110,625,000
|
|
|
Wells Fargo Securities, LLC
|
|
|
110,625,000
|
|
|
Lloyds Securities Inc.
|
|
|
78,750,000
|
|
|
BMO Capital Markets
|
|
|
15,000,000
|
|
|
ING Financial Markets LLC
|
|
|
15,000,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
15,000,000
|
|
|
Morgan Stanley & Co. LLC
|
|
|
15,000,000
|
|
|
BB&T Capital Markets
|
|
|
7,500,000
|
|
|
Raymond James & Associates, Inc.
|
|
|
7,500,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
375,000,000
|
|
|
|
|
|
|
|
SCHEDULE I
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package: None.
(b) Additional Documents Incorporated by Reference: None.
SCHEDULE II
Exhibit 4.1
THE HANOVER INSURANCE GROUP, INC.
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of April 8, 2016
CROSS-REFERENCE TABLE
|
|
|
|
|
|
|
TIA Section
|
|
Indenture Section
|
|
|
310(a)(1)
|
|
|
6.9
|
|
|
(a)(2)
|
|
|
6.9
|
|
|
(a)(3)
|
|
|
N/A
|
|
|
(a)(4)
|
|
|
N/A
|
|
|
(a)(5)
|
|
|
6.9
|
|
|
(b)
|
|
|
6.8; 6.9
|
|
|
(c)
|
|
|
N/A
|
|
|
311(a)
|
|
|
6.13
|
|
|
(b)
|
|
|
6.13
|
|
|
(c)
|
|
|
N/A
|
|
|
312(a)
|
|
|
7.1
|
|
|
(b)
|
|
|
7.2
|
|
|
(c)
|
|
|
7.2
|
|
|
313(a)
|
|
|
7.3
|
|
|
(b)(1)
|
|
|
7.3
|
|
|
(b)(2)
|
|
|
7.3
|
|
|
(c)
|
|
|
7.3
|
|
|
(d)
|
|
|
7.3
|
|
|
314(a)
|
|
|
7.4
|
|
|
(b)
|
|
|
N/A
|
|
|
(c)(1)
|
|
|
1.2
|
|
|
(c)(2)
|
|
|
1.2
|
|
|
(c)(3)
|
|
|
N/A
|
|
|
(d)
|
|
|
N/A
|
|
|
(e)
|
|
|
1.2
|
|
|
(f)
|
|
|
1.2
|
|
|
315(a)
|
|
|
6.1
|
|
|
(b)
|
|
|
6.2
|
|
|
(c)
|
|
|
6.1
|
|
|
(d)
|
|
|
6.1;6.3
|
|
|
(e)
|
|
|
5.14
|
|
|
316(a) (last sentence)
|
|
|
1.1(“Outstanding”)
|
|
|
(a)(1)(A)
|
|
|
5.12
|
|
|
(a)(1)(B)
|
|
|
5.13
|
|
|
(a)(2)
|
|
|
N/A
|
|
|
(b)
|
|
|
5.8
|
|
|
(c)
|
|
|
9.2
|
|
|
317(a)(1)
|
|
|
5.3
|
|
|
|
|
|
|
|
|
TIA Section
|
|
Indenture Section
|
|
|
(a)(2)
|
|
|
5.4
|
|
|
(b)
|
|
|
10.3
|
|
|
318(a)
|
|
|
1.7
|
|
N/A means Not Applicable
Note: This Cross-Reference Table shall not,
for any purpose, be deemed to be part of this Indenture.
i
TABLE OF CONTENTS
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Page
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|
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
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1
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|
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Section 1.1.
|
|
Definitions
.
|
|
|
1
|
|
|
Section 1.2.
|
|
Compliance Certificates and Opinions
.
|
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|
7
|
|
|
Section 1.3.
|
|
Form of Documents Delivered to Trustee
.
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7
|
|
|
Section 1.4.
|
|
Acts of Holders
.
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8
|
|
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Section 1.5.
|
|
Notices, Etc., to Trustee or Company
.
|
|
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9
|
|
|
Section 1.6.
|
|
Notice to Holders; Waiver
.
|
|
|
10
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Section 1.7.
|
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Conflict with Trust Indenture Act
.
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10
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Section 1.8.
|
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Effect of Headings and Table of Contents
.
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11
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Section 1.9.
|
|
Successors and Assigns
.
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11
|
|
|
Section 1.10.
|
|
Separability Clause
.
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|
|
11
|
|
|
Section 1.11.
|
|
Benefits of Indenture
.
|
|
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11
|
|
|
Section 1.12.
|
|
Governing Law
.
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|
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11
|
|
|
Section 1.13.
|
|
Legal Holidays
.
|
|
|
11
|
|
|
Section 1.14.
|
|
Waiver of Jury Trial
.
|
|
|
11
|
|
|
|
|
|
ARTICLE II SECURITY FORMS
|
|
|
12
|
|
|
Section 2.1.
|
|
Forms Generally
.
|
|
|
12
|
|
|
Section 2.2.
|
|
Form of Trustee’s Certificate of Authentication
.
|
|
|
12
|
|
|
|
|
|
ARTICLE III THE SECURITIES
|
|
|
12
|
|
|
Section 3.1.
|
|
Amount Unlimited; Issuable in Series
.
|
|
|
12
|
|
|
Section 3.2.
|
|
Denominations
.
|
|
|
15
|
|
|
Section 3.3.
|
|
Execution, Authentication, Delivery and Dating
.
|
|
|
15
|
|
|
Section 3.4.
|
|
Temporary Securities
.
|
|
|
17
|
|
|
Section 3.5.
|
|
Registration; Registration of Transfer and Exchange
.
|
|
|
18
|
|
|
Section 3.6.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
.
|
|
|
19
|
|
|
Section 3.7.
|
|
Payment of Interest; Interest Rights Preserved
.
|
|
|
20
|
|
|
Section 3.8.
|
|
Persons Deemed Owners
.
|
|
|
21
|
|
|
Section 3.9.
|
|
Cancellation
.
|
|
|
21
|
|
|
Section 3.10.
|
|
Computation of Interest
.
|
|
|
21
|
|
|
Section 3.11.
|
|
CUSIP Numbers
.
|
|
|
21
|
|
|
|
|
|
ARTICLE IV SATISFACTION AND DISCHARGE
|
|
|
22
|
|
|
Section 4.1.
|
|
Satisfaction and Discharge of Indenture
.
|
|
|
22
|
|
|
Section 4.2.
|
|
Application of Trust Money
.
|
|
|
23
|
|
|
|
|
|
ARTICLE V REMEDIES
|
|
|
23
|
|
|
Section 5.1.
|
|
Events of Default
.
|
|
|
23
|
|
|
Section 5.2.
|
|
Acceleration of Maturity; Rescission and Annulment
.
|
|
|
25
|
|
ii
|
|
|
|
|
|
|
|
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Page
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|
|
Section 5.3.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
.
|
|
|
26
|
|
|
Section 5.4.
|
|
Trustee May File Proofs of Claim
.
|
|
|
27
|
|
|
Section 5.5.
|
|
Trustee May Enforce Claims Without Possession of Securities
.
|
|
|
28
|
|
|
Section 5.6.
|
|
Application of Money Collected
.
|
|
|
28
|
|
|
Section 5.7.
|
|
Limitation on Suits
.
|
|
|
28
|
|
|
Section 5.8.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
|
|
|
29
|
|
|
Section 5.9.
|
|
Restoration of Rights and Remedies
.
|
|
|
29
|
|
|
Section 5.10.
|
|
Rights and Remedies Cumulative
.
|
|
|
29
|
|
|
Section 5.11.
|
|
Delay or Omission Not Waiver
.
|
|
|
30
|
|
|
Section 5.12.
|
|
Control by Holders
.
|
|
|
30
|
|
|
Section 5.13.
|
|
Waiver of Past Defaults
.
|
|
|
30
|
|
|
Section 5.14.
|
|
Undertaking for Costs
.
|
|
|
31
|
|
|
Section 5.15.
|
|
Waiver of Usury, Stay or Extension Laws
.
|
|
|
31
|
|
|
|
|
|
ARTICLE VI THE TRUSTEE
|
|
|
31
|
|
|
Section 6.1.
|
|
Certain Duties and Responsibilities
.
|
|
|
31
|
|
|
Section 6.2.
|
|
Notice of Defaults
.
|
|
|
32
|
|
|
Section 6.3.
|
|
Certain Rights of Trustee
.
|
|
|
33
|
|
|
Section 6.4.
|
|
Not Responsible for Recitals or Issuance of Securities
.
|
|
|
34
|
|
|
Section 6.5.
|
|
May Hold Securities
.
|
|
|
34
|
|
|
Section 6.6.
|
|
Money Held in Trust
.
|
|
|
34
|
|
|
Section 6.7.
|
|
Compensation and Reimbursement
.
|
|
|
34
|
|
|
Section 6.8.
|
|
Disqualification; Conflicting Interests
.
|
|
|
35
|
|
|
Section 6.9.
|
|
Corporate Trustee Required; Eligibility
.
|
|
|
35
|
|
|
Section 6.10.
|
|
Resignation and Removal; Appointment of Successor
.
|
|
|
35
|
|
|
Section 6.11.
|
|
Acceptance of Appointment by Successor
.
|
|
|
37
|
|
|
Section 6.12.
|
|
Merger, Conversion, Consolidation or Succession to Business
.
|
|
|
38
|
|
|
Section 6.13.
|
|
Preferential Collection of Claims
.
|
|
|
38
|
|
|
Section 6.14.
|
|
Appointment of Authenticating Agent
.
|
|
|
38
|
|
|
|
|
|
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
40
|
|
|
Section 7.1.
|
|
Company to Furnish Trustee Names and Addresses of Holders
.
|
|
|
40
|
|
|
Section 7.2.
|
|
Preservation of Information; Communications to Holders
.
|
|
|
40
|
|
|
Section 7.3.
|
|
Reports by Trustee
.
|
|
|
41
|
|
|
Section 7.4.
|
|
Reports by Company
.
|
|
|
41
|
|
|
|
|
|
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
42
|
|
|
Section 8.1.
|
|
Company May Consolidate, Etc., Only on Certain Terms
.
|
|
|
42
|
|
|
Section 8.2.
|
|
Successor Substituted
.
|
|
|
42
|
|
|
|
|
|
ARTICLE IX SUPPLEMENTAL INDENTURES
|
|
|
43
|
|
|
Section 9.1.
|
|
Supplemental Indentures Without Consent of Holders
.
|
|
|
43
|
|
|
Section 9.2.
|
|
Supplemental Indentures with Consent of Holders
.
|
|
|
44
|
|
|
Section 9.3.
|
|
Execution of Supplemental Indentures
.
|
|
|
45
|
|
iii
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 9.4.
|
|
Effect of Supplemental Indentures
.
|
|
|
45
|
|
|
Section 9.5.
|
|
Conformity with Trust Indenture Act
.
|
|
|
45
|
|
|
Section 9.6.
|
|
Reference in Securities to Supplemental Indentures
.
|
|
|
46
|
|
|
|
|
|
ARTICLE X COVENANTS
|
|
|
46
|
|
|
Section 10.1.
|
|
Payment of Principal, Premium and Interest
.
|
|
|
46
|
|
|
Section 10.2.
|
|
Maintenance of Office or Agency
.
|
|
|
46
|
|
|
Section 10.3.
|
|
Money for Securities Payments to Be Held in Trust
.
|
|
|
47
|
|
|
Section 10.4.
|
|
Corporate Existence
.
|
|
|
48
|
|
|
Section 10.5.
|
|
Statement by Officers as to Default
.
|
|
|
48
|
|
|
Section 10.6.
|
|
Waiver of Covenant
.
|
|
|
48
|
|
|
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES
|
|
|
49
|
|
|
Section 11.1.
|
|
Applicability of Article
.
|
|
|
49
|
|
|
Section 11.2.
|
|
Election to Redeem; Notice to Trustee
.
|
|
|
49
|
|
|
Section 11.3.
|
|
Selection by Trustee of Securities to Be Redeemed
.
|
|
|
49
|
|
|
Section 11.4.
|
|
Notice of Redemption
.
|
|
|
50
|
|
|
Section 11.5.
|
|
Deposit of Redemption Price
.
|
|
|
51
|
|
|
Section 11.6.
|
|
Securities Payable on Redemption Date
.
|
|
|
51
|
|
|
Section 11.7.
|
|
Securities Redeemed in Part
.
|
|
|
51
|
|
|
|
|
|
ARTICLE XII SINKING FUNDS
|
|
|
52
|
|
|
Section 12.1.
|
|
Applicability of Article
.
|
|
|
52
|
|
|
Section 12.2.
|
|
Satisfaction of Sinking Fund Payments with Securities
.
|
|
|
52
|
|
|
Section 12.3.
|
|
Redemption of Securities for Sinking Fund
.
|
|
|
52
|
|
|
|
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
53
|
|
|
Section 13.1.
|
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant
Defeasance
.
|
|
|
53
|
|
|
Section 13.2.
|
|
Defeasance and Discharge
.
|
|
|
53
|
|
|
Section 13.3.
|
|
Covenant Defeasance
.
|
|
|
53
|
|
|
Section 13.4.
|
|
Conditions to Defeasance or Covenant Defeasance
.
|
|
|
54
|
|
|
Section 13.5.
|
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions
.
|
|
|
56
|
|
INDENTURE, dated as of April 8, 2016, between The Hanover Insurance Group, Inc., a Delaware
corporation (herein called the “Company”), having its principal executive offices at 440 Lincoln Street, Worcester, Massachusetts, and U.S. Bank National Association, as trustee (herein called the “Trustee”).
RECITALS OF THE COMPANY
The
Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its senior and subordinated debentures, notes or other evidences of indebtedness (herein called the “Securities”), to
be issued in one or more series as in this Indenture provided.
NOW, THEREFORE, for and in consideration of the premises and the purchase
of the Securities by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER
PROVISIONS
OF GENERAL APPLICATION
Section 1.1.
Definitions
.
For all
purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms
defined in this Article have the respective meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the
respective meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the respective
meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation;
(4) the words “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; and
(5) references to Sections are to Sections of this Indenture unless otherwise expressly indicated.
“Acceleration Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
“Act”, when used with
respect to any Holder, has the meaning specified in Section 1.4(a).
“Affiliate” of any specified Person means any other
Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the Trustee
to authenticate Securities.
“Board of Directors” means the board of directors of the Company or any duly authorized committee
of such board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The
City of New York, Boston, Massachusetts or the city in which the Corporate Trust Office is located are required or authorized to close.
“Capital Stock” for any corporation means any and all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) stock issued by that corporation.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the
first paragraph of this Indenture until a successor Person shall have become the Company’s successor pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
2
“Company Request” or “Company Order” means a written request or order signed
in the name of the Company by any two Officers.
“Corporate Trust Office” means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered, which office, as at the date of this Indenture, is located at One Federal Street, 3rd Floor, Boston, Massachusetts 02110, Attention: Corporate Trust Services, Reference
# Hanover 2013.
The term “corporation” includes corporations, associations, companies (including limited liability companies)
and business trusts.
The terms “covenant defeasance” and “defeasance” bear the meanings assigned to such terms,
respectively, by Sections 13.3 and 13.2.
The term “default”, when used in Section 6.2, has the meaning specified in
Section 6.2.
“Defaulted Interest” has the meaning specified in Section 3.7(b).
“Depositary” means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary for such series by the Company pursuant to Section 3.1(b)(15), which Person shall be a clearing agency registered under the Exchange Act, and if at any time there is more than one such
Person, “Depositary” as used with respect to the Securities of any series shall mean the Depositary with respect to the Securities of such series.
“Event of Default” has the meaning specified in Section 5.1.
“Exchange Act” means the Securities and Exchange Act of 1934, as amended from time to time.
“Global Security” or “Global Securities” means a Security or Securities, as the case may be, evidencing all or part of a
series of Securities, issued to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indebtedness” of any Person means indebtedness for borrowed money and indebtedness under purchase money mortgages or other purchase
money liens, in each case where such indebtedness has been created, incurred, or assumed by such Person to the extent such indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance with generally accepted
accounting principles, guarantees by such Person of such indebtedness of others, and indebtedness for borrowed money secured by any mortgage, pledge or other lien or encumbrance upon property owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness.
“Indenture” means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by
Section 3.1.
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The term “interest”, when used with respect to an Acceleration Discount Security which
by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with
respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Market Exchange Rate” has
the meaning specified in Section 1.4(f).
“Maturity”, when used with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” has the meaning specified in Section 5.1.
“Officer” means the Chairman of the Board of Directors, any Vice Chairman of the Board of Directors, the Chief Executive Officer,
the President, the Chief Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or the Controller of the Company.
“Officers’ Certificate” means a certificate signed by any two Officers. An Officers’ Certificate provided pursuant to
Section 10.5 shall be signed by the principal executive, financial or accounting Officer of the Company.
“Opinion of
Counsel” means a written opinion of counsel, who may be counsel for the Company (including an employee or officer of the Company or any of its Affiliates) and who shall be reasonably acceptable to the Trustee (it being agreed and acknowledged
that Ropes & Gray LLP is acceptable to the Trustee to provide such opinion).
“Outstanding”, when used with respect to
Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money (or in the case of payment by defeasance under Section 13.2, money,
U.S. Government Obligations or both) in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust, or set aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent), for the Holders of such Securities;
provided
that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been
made and
provided
further
, in the case of payment by defeasance under Section 13.2, that all conditions precedent to the application of such Section shall have been satisfied; and
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(iii) Securities which have been paid pursuant to Section 3.6 or in exchange
for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided
,
however
, that
in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Acceleration
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 5.2 and
(ii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s independent right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of the Company.
“Person” means any individual,
corporation, partnership, joint venture, association,
joint-stock
company, trust, unincorporated organization, limited liability company or government or any agency or political subdivision thereof.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of (and
premium, if any) and interest on the Securities of that series are payable as specified as contemplated by Section 3.1 or, if not so specified, the City of New York, New York.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date”, when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when
used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
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“Regular Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as contemplated by Section 3.1.
“Responsible Officer”,
when used with respect to the Trustee, means any officer in the Corporate Trust Office 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 to whom such matter is referred because of such other officer’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities of any series
authenticated and delivered under this Indenture.
“Security Register” and “Security Registrar” have the respective
meanings specified in Section 3.5(a).
“Special Record Date” for the payment of any Defaulted Interest means a date fixed
by the Trustee pursuant to Section 3.7(b).
“Stated Maturity”, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means (i) a corporation, a majority of whose Capital Stock with voting power, under ordinary circumstances, to
elect directors is, at the date of determination, directly or indirectly owned by the Company, by one or more Subsidiaries of the Company or by the Company and one or more Subsidiaries of the Company, (ii) a partnership in which the Company or
a Subsidiary of the Company holds a majority interest in the equity capital or profits of such partnership, or (iii) any other Person (other than a corporation or partnership) in which the Company, a Subsidiary of the Company or the Company and
one or more Subsidiaries of the Company, directly or indirectly, at the date of determination, has (x) at least a majority ownership interest or (y) the power to elect or direct the election of a majority of the directors or other
governing body of such Person.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which
this Indenture was executed, except as provided in Section 9.5 and, to the extent required by any amendment thereto, the Trust Indenture Act of 1939, as amended from time to time.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee
shall have assumed such role pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder and, if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“U.S. Government Obligation” has the meaning set forth in Section 13.4(a).
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“Vice President” means any vice president, whether or not designated by a number or a
word or words added before or after the title “vice president”.
Section 1.2.
Compliance Certificates and Opinions
.
(a) Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, 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, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to
such particular application or request, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this Indenture (other than certificates provided pursuant to Section 10.5) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the
opinion of each such individual, such individual has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.3.
Form of Documents Delivered to Trustee
.
(a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or more documents.
(b) Any certificate or opinion of any officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it
7
relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.4.
Acts of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and
date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Security or such other Security.
(e) The Depositary selected
pursuant to subsection (15) of Section 3.1(b), as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is
entitled to give or take hereunder.
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(f) Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 3.1 with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal
amount of Securities of all series or all series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any series which are denominated in a currency other than U.S. Dollars, then the
principal amount of Securities of such series which shall be deemed to be outstanding for the purpose of taking such action shall be that amount of U.S. Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For
purposes of this Section 1.4(f), “Market Exchange Rate” shall mean the noon U.S. Dollar buying rate in The City of New York for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or quotations from one or more major
banks in The City of New York or in the country of issue of the currency in question or such other quotations as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions of this Section 1.4(f) shall apply in
determining the equivalent principal amount in respect of Securities of a series denominated in currency other than U.S. Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture. All decisions and
determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in this Section 1.4(f) shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent
permitted by law for all purposes and irrevocably binding upon the Company and all Holders.
Section 1.5.
Notices, Etc., to Trustee or
Company
.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or
permitted by this Indenture to be made, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company
shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed,
first-class
postage prepaid, to the Company addressed to it at the address of its office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
The Trustee agrees to accept and act upon instructions, in a written document
pursuant to this Indenture, which are sent to the Trustee by email, pdf, or facsimile transmission, provided, however, that the Trustee shall have received or have on file an incumbency certificate listing persons designated to give such
instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the
9
Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding
of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods by the Company to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 1.6.
Notice to Holders; Waiver
.
(a) Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed,
first-class
postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such 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 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.
(b) In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.7.
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any
of the provisions of the Trust Indenture Act, such required provision shall control. If any provision hereof limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act, such imposed duties shall control.
If any provision of the Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern the Indenture, such provision of the Trust Indenture Act shall
control. If any provision of the Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to the Indenture as such provision of the Trust Indenture Act
is so modified or excluded, as the case may be.
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Section 1.8.
Effect of Headings and Table of Contents
.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.9.
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10.
Separability Clause
.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11.
Benefits of Indenture
.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12.
Governing
Law
.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.13.
Legal Holidays
.
In
any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount then payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.14.
Waiver of Jury Trial
.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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ARTICLE II
SECURITY FORMS
Section 2.1.
Forms
Generally
.
(a) The Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Officers executing such Securities, as evidenced by their
execution of such Securities. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities.
(b) The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.2.
Form of Trustee’s
Certificate of Authentication
.
The Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned
Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
as
Trustee
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By
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Authorized Signatory
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ARTICLE III
THE SECURITIES
Section 3.1.
Amount
Unlimited; Issuable in Series
.
(a) The aggregate principal amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
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(b) The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and (subject to Section 3.3) set forth or determined as provided 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 which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
(3)
the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest;
(4) the date or dates on which the principal of the Securities of the series is payable and/or the method by
which such date or dates shall be determined;
(5) the rate or rates (or method for establishing the rate or rates) at
which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any
Interest Payment Date (or method for establishing such date or dates);
(6) the place or places where the principal of (and
premium, if any) and interest on Securities of the series shall be payable and the place or places where Securities may be presented for transfer exchange;
(7) the period or periods within which, the price or prices at 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 Company;
(8) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other
than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
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(10) if other than the full 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 5.2 or the method by which such portion shall be determined;
(11) if other than such currency of the United States of America as at the time of payment is legal tender for payment of
public or private debts, the currency or currencies (including composite currencies) in which payment of the principal of (and premium, if any) and/or interest on the Securities of the series shall be payable;
(12) if the principal of (and premium, if any) and/or interest on the Securities of the series are to be payable, at the
election of the Company or any Holder, in a currency or currencies (including composite 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 amounts of payments of principal of (and premium, if any) and/or interest on the
Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(14) in the case of Securities of a series the terms of which are not established pursuant to subsection (11), (12) or
(13) above, whether either or both of Section 13.2 or Section 13.3 shall not be applicable to the Securities of such series; or, in the case of Securities the terms of which are established pursuant to subsection (11), (12) or
(13) above, the adoption and applicability, if any, to such Securities of any terms and conditions similar to those contained in Section 13.2 and/or Section 13.3;
(15) whether the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and,
in such case, the Depositary for such Global Security or Global Securities;
(16) any additional or different events of
default that apply to Securities of the series, and any change in the right of the Trustee or the Holders of such Securities to declare the principal thereof due and payable;
(17) any additional or different covenants that apply to Securities of the series;
(18) the term and conditions, if any, upon which the Securities shall be subordinated in right of payment to other Indebtedness
of the Company;
(19) the form of the Securities of the series;
(20) whether the Securities will be convertible into or exchangeable for shares of common stock, warrants or any other
securities or property of the Company or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated
and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period; and
14
(21) any other terms of the Securities of such series (which terms shall not
contradict the provisions the Trust Indenture Act, but may modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).
(c) All Securities of any one series shall be substantially identical except as to denomination, date of authentication, and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth or determined as provided in an Officers’ Certificate or in any indenture supplemental hereto.
(d) If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series. With respect to Securities of a
series constituting a medium term note program, such Board Resolution may provide general terms or parameters for Securities of such series and may provide that the specific terms of particular Securities of such series, and the Persons authorized
to determine such terms or parameters, may be determined in accordance with or pursuant to the Company Order referred to in Section 3.3.
Section 3.2.
Denominations
.
The
Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 3.1. In the absence of any such provisions with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.3.
Execution, Authentication,
Delivery and Dating
.
(a) The Securities shall be executed on behalf of the Company by any Officer and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these Officers on the Securities may be manual or facsimile.
(b) Securities bearing
the manual or facsimile signatures of individuals who were at any time the proper Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such Securities.
(c) At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of any series executed on behalf of the Company pursuant to paragraph (a) above to the Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, that, with respect to Securities of a series constituting a medium term note program, the Trustee shall
authenticate and deliver Securities of such series for original issue from time to time in the aggregate
15
principal amount established for such series pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by a Company Order. The maturity
dates, original issue dates, interest rates and any other terms of the Securities of such series shall be determined by or pursuant to such Company Order and procedures.
(d) If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(1) if the form of any of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 2.1, that such form has been established in conformity with the provisions of this Indenture;
(2) if the terms of any of such Securities have been established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms have been established in conformity with the provisions of this Indenture; and
(3) that
such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
(e) Notwithstanding that such form or terms have been so established, the Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture would adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
(f) Notwithstanding the provisions of Section 3.1 and of the preceding paragraphs of this Section 3.3, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise required pursuant to the
preceding paragraphs of this Section 3.3 at or prior to the time of authentication of each Security of such series if such documents have been delivered at or prior to the time of authentication upon original issuance of the first Security of
such series to be issued.
(g) With respect to Securities of a series constituting a medium term note program, if the form and general
terms of the Securities of such series have been established by or pursuant to one or more Board Resolutions or by an indenture supplemental hereto, as permitted by Sections 2.1 and 3.1 in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon, in addition to the
16
foregoing documents and Opinion of Counsel, or in lieu of clause (c) above, an Opinion of Counsel stating that the Securities have been duly authorized by the Company and, when duly executed
by the Company and completed and authenticated by the Trustee in accordance with the Indenture and issued, delivered and paid for in accordance with any applicable distribution agreement, will have been duly issued under the Indenture and will
constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of
creditors’ rights and to general equity principles.
(h) Each Security shall be dated the date of its authentication.
(i) No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9 together with a written statement (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4.
Temporary Securities
.
(a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order from the Company, the
Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which
they are issued, with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as evidenced by their execution of such Securities.
(b) If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series and of like tenor in authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of such series.
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Section 3.5.
Registration; Registration of Transfer and Exchange
.
(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
(b) Upon surrender for registration of transfer of any Security of any series at an office or agency of the Company in a Place of Payment
designated by the Company pursuant to Section 10.2 for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount and tenor.
(c) At the option of the Holder, Securities
of any series may be exchanged for other Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
(d) All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
(e) Every Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
(f) No service charge shall be made for any registration of transfer or exchange of Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any
transfer.
(g) The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 11.3 and ending at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
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(h) Notwithstanding the foregoing, any Global Security shall be exchangeable pursuant to this
Section 3.5 for Securities registered in the names of Persons other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if any time such Depositary ceases to be a clearing agency registered under the Exchange Act, as amended, (ii) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing an Event of Default of which the Trustee has been notified with respect to the series of Securities represented by such Global Security. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and
terms.
(i) Notwithstanding any other provision in this Indenture, a Global Security may not be transferred except as a whole by the
Depositary with respect to such Global Security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary.
Section 3.6.
Mutilated, Destroyed, Lost and Stolen Securities
.
(a) If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and principal amount, and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount, and bearing
a number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of
any new Security under this Section, the Company or the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee and its counsel) connected therewith.
(e) Every new Security of any series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
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(f) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7.
Payment of
Interest; Interest Rights Preserved
.
(a) Unless otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
(b) Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder entitled to such interest by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date (the “Special Record Date”) for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such
series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
20
(2) The Company may elect to make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Security delivered under this Indenture, upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and interest to accrue, which were carried by such other Security.
Section 3.8.
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.7) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.9.
Cancellation
.
All
Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as directed by a Company Order from
the Company.
Section 3.10.
Computation of Interest
.
Except as otherwise specified as contemplated by Section 3.1 for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11.
CUSIP Numbers
.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made
21
as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE IV
SATISFACTION AND
DISCHARGE
Section 4.1.
Satisfaction and Discharge of Indenture
.
(a) This Indenture shall upon Company Request cease to be of further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer or exchange of Securities of such series and replacement of lost, stolen or mutilated Securities of such series herein expressly provided for), and the Trustee, on the demand of and at the expense of the
Company, shall execute instruments acknowledging satisfaction and discharge of this Indenture with respect to such series, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered have been delivered to the Trustee for cancellation
(other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6 and (ii) Securities of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3); or
(B) all such Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption,
and the Company, in the case of clauses (i), (ii) or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities of such series not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Securities of such series which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; and
22
(2) the Company has paid or caused to be paid all other sums payable hereunder by
the Company; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
(b) At any time when no Securities of any series are outstanding, this Indenture shall upon Company Request cease to be of further effect, and
the Trustee, at the expense of the Company, shall execute instruments of satisfaction and discharge of this Indenture.
(c)
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (a)(1) of this
Section 4.1, the obligations of the Trustee under Section 4.2 and Section 10.3(e) shall survive.
Section 4.2.
Application of Trust
Money
.
Subject to the provisions of Section 10.3(e), all money deposited with the Trustee pursuant to Section 4.1, all money
and U.S. Government Obligations deposited with the Trustee pursuant to Section 13.2 or Section 13.3 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 13.2 or
Section 13.3, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with or received by the Trustee as contemplated by Section 4.1, Section 13.2 or
Section 13.3.
ARTICLE V
REMEDIES
Section 5.1.
Events of
Default
.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following
events (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):
(1) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or
23
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the
terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a
series of Securities other than the series in respect of which the Event of Default is being determined), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series 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
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the
Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by the Company of an assignment for the benefit of creditors, or
the admission by the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series.
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Subject to the provisions of Section 6.1 hereof, the Trustee shall not be deemed to have
knowledge of an Event of Default hereunder (except for those described in paragraphs (1) through (3) above) unless a Responsible Officer of the Trustee shall have actual knowledge thereof or shall have received written notice thereof.
Section 5.2.
Acceleration of Maturity; Rescission and Annulment
.
(a) If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in clause
(5) or (6) of Section 5.1) occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Acceleration Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in clause
(5) or (6) of Section 5.1 occurs, the principal amount (or, if any of the Securities of that series are Acceleration Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Outstanding Securities of that series shall be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of any Security of that series.
(b) At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the
extent that payment of such interest is lawful, interest upon overdue principal (and premium, if any) and overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
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(2) all Events of Default with respect to Securities of that series, other than
the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
(c) No such rescission shall affect any subsequent default or impair any right consequent thereon.
(d) Upon receipt by the Trustee of any declaration of acceleration, or rescission and annulment thereof, with respect to Securities of a
series, the Trustee shall establish a record date for determining Holders of Outstanding Securities of such series entitled to join in such declaration of acceleration, or rescission and annulment, as the case may be, which record date shall be at
the close of business on the day the Trustee receives such declaration of acceleration, or rescission and annulment, as the case may be. The Holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to
join in such declaration of acceleration, or rescission and annulment, as the case may be, whether or not such Holders remain Holders after such record date; provided, that unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite percentage having been obtained prior to the day which is 90 days after such record date, such declaration of acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no further effect. Nothing in this Section 5.2(d) shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new declaration
of acceleration, or rescission or annulment thereof, as the case may be, that is identical to a declaration of acceleration, or rescission or annulment thereof, which has been canceled pursuant to the proviso to the preceding sentence, in which
event a new record date shall be established pursuant to the provisions of this Section 5.2(d).
Section 5.3.
Collection of Indebtedness and
Suits for Enforcement by Trustee
.
(a) The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default
continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof; or
(3) default is made in the deposit of any sinking fund payment, when and as due by
the terms of any Security;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
26
(b) If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
(c) If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4.
Trustee May File Proofs of Claim
.
(a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor, the Trustee (irrespective of whether the principal of the 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 on the Company for the payment of overdue principal (and premium, if any) or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities 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 the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same.
(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7.
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(c) Nothing herein contained shall be deemed to authorize the Trustee to authorize, consent to,
accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.5.
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.6.
Application of Money Collected
.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: To the Company.
Section 5.7.
Limitation on Suits
.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has
previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be incurred as a result of complying with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.8.
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to Section 3.7) interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.9.
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10.
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in
Section 3.6(f), no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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Section 5.11.
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. 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 5.12.
Control by Holders
.
(a) The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series,
provided
that,
(1) such direction shall not be in conflict with any rule of law or with this Indenture, nor subject the Trustee to a material
risk of personal liability in respect of which the Trustee has not received reasonably satisfactory indemnification, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
(b) Upon receipt by the Trustee of any such direction with respect to Securities of a series, the Trustee shall establish a record date for
determining Holders of outstanding Securities of such series entitled to join in such direction, which record date shall be at the close of business on the day the Trustee receives such direction, or, if such receipt occurs after the close of
business or on a day that is not a Business Day, the next succeeding Business Day. The Holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such direction, whether or not such Holders
remain Holders after such record date; provided, that unless such majority in principal amount shall have been obtained prior to the day which is 90 days after such record date, such direction shall automatically and without further action by any
Holder be canceled and of no further effect. Nothing in this Section 5.12(b) shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new direction identical to a direction which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.12(b).
Section 5.13.
Waiver of Past Defaults
.
(a) The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or interest on any Security of such series, or
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(2) in respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such series directly affected.
(b) Upon any such
waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14.
Undertaking for Costs
.
Each party to this Indenture agrees, and each Holder of any Security by acceptance thereof shall be deemed to have agreed, that any court may
in its discretion 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 may in its discretion 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 Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
Section 5.15.
Waiver of Usury, Stay or Extension Laws
.
The Company covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.1.
Certain Duties
and Responsibilities
.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
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(2) in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such 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) In case an Event of Default has occurred and is continuing, 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 person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) 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,
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith
by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) 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, determined as provided in Section 5.12, of the Holders of a majority in principal amount of the Outstanding Securities of any series, relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2.
Notice of
Defaults
.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such default
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hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in the payment of any sinking fund installment with respect to 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 Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series. For the purpose of this
Section, the term “default” with respect to Securities of any series means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 6.3.
Certain Rights of Trustee
.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture (including, without limitation, instituting, conducting or defending any litigation), unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to
it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and
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(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
Section 6.4.
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.5.
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 6.6.
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 6.7.
Compensation and
Reimbursement
.
The Company agrees:
(1) to pay to the Trustee from time to time such reasonable compensation for its acceptance of this Indenture and for its
services hereunder as Trustee, Paying Agent, Security Registrar and in all other capacities in which it is serving hereunder as the Company and the Trustee shall from time to time agree in writing (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly
provided herein, to reimburse the Trustee upon its request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith or willful misconduct; and
34
(3) to indemnify the Trustee and its agents, directors, employees and officers
for, and to hold them harmless against, any loss, liability or out-of-pocket expense (including the reasonable compensation, expenses and disbursements of its agents and counsel) incurred without negligence, bad faith or willful misconduct on its or
their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and out-of-pocket expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of the Trustee’s powers or duties hereunder.
As security for the performance of the obligations of
the Company under this Section 6.7, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee in such capacity, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on particular Securities. If the Trustee incurs out-of-pocket expenses or renders services after the occurrence and during the continuance of an Event of Default, the expenses and the compensation for the services will be
intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any applicable Federal or State law for the relief of debtors. The provisions of this Section 6.7 shall survive the resignation or removal
of the Trustee and the termination of this Indenture.
Section 6.8.
Disqualification; Conflicting Interests
.
The Trustee shall comply with the terms of Section 310(b) of the Trust Indenture Act.
Section 6.9.
Corporate Trustee Required; Eligibility
.
There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section 6.9, 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. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified in this Article VI.
Section 6.10.
Resignation and Removal;
Appointment of Successor
.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
35
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request therefor by the Company or any such Holder, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If no successor Trustee with respect to the Securities of any series shall have been so
appointed by the Company within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series. If no successor Trustee with respect to the Securities of any series shall have been so
36
appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11.
Acceptance of Appointment by Successor
.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and, upon
the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, and each such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to
37
the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) and (b) of this Section 6.11, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12.
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 6.13.
Preferential Collection of Claims
.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 6.14.
Appointment of Authenticating Agent
.
(a) At any time when any of the Securities remain Outstanding, the Trustee may and, upon request of the Company, shall appoint an
Authenticating Agent or Agents with respect to one or more series of Securities, which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, provided that the Trustee’s appointment of such Authenticating Agent shall be subject to the Company’s approval at the time of and throughout such appointment. Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a
38
certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all times be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this
Section 6.14, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 6.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 6.14.
39
(b) Any corporation into which an Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company.
The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company, and the Trustee shall terminate any such agency promptly upon request by the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may and, upon request of the Company, shall
appoint a successor Authenticating Agent, provided that the Trustee’s appointment of such Authenticating Agent shall be subject to the Company’s approval at the time of and throughout such appointment and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
(d) The Company agrees to pay to each Authenticating Agent as mutually
agreed from time to time reasonable compensation for its services under this Section.
(e) If an appointment of an Authenticating Agent
with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By
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As Authenticating Agent
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By
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Authorized Signatory
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ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1.
Company to Furnish Trustee Names and Addresses of Holders
.
If the Trustee is not the Security Registrar, the Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually (at intervals of not more than six months), not later than 15 days after each Regular Record Date (or, if there is no
Regular Record Date relating to a series, semi-annually on dates set forth in the Board Resolution or supplemental indenture with respect to such series), a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders as of such date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.
Section 7.2.
Preservation of Information; Communications to Holders
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) Holders of any series may communicate pursuant to Section 312(b) of
the Trust Indenture Act with other Holders of that series or any other series with respect to their rights under this Indenture or the Securities of that series or any other series. The Company, the Trustee, the Registrar and any other Person shall
have the protection of Section 312(c) of the Trust Indenture Act.
40
Section 7.3.
Reports by Trustee
.
(a) Within 60 days after May 15 of each year, commencing the May 15 following the date of this Indenture, the Trustee shall, to the
extent that any of the events described in Section 313(a) of the Trust Indenture Act occurred within the previous 12 months, but not otherwise, mail to each Holder a brief report dated as of such date that complies with Section 313(a) of
the Trust Indenture Act. The Trustee also shall comply with Sections 313(a), 313(b), 313(c) and 313(d) of the Trust Indenture Act.
(b) A
copy of each report at the time of its mailing to Holders shall be mailed to the Company and filed with the Commission and each securities exchange, if any, on which the Securities of that series are listed.
(c) The Company shall notify the Trustee if the Securities of any series become listed on any securities exchange or of any delisting thereof
and the Trustee shall comply with Section 313(d) of the Trust Indenture Act.
Section 7.4.
Reports by Company
.
(a) The Company shall:
(1) file with the Trustee, within 15 days after the Company files the same with the Commission, copies of the annual reports
and of the information, documents and 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 Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such Sections, then it shall file with the Trustee and the Commission, in
accordance with, and to the extent required by, 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
Exchange Act, 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;
(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
41
(b) Delivery of any information, documents and reports to the Trustee pursuant to paragraph
(a) (1) and (a) (2) of this Section is for informational purposes only and the Trustee’s receipt of such items shall not constitute constructive notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE VIII
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not consolidate or amalgamate with or merge into any other Person or convey, transfer or lease all or substantially all of
the Company’s properties and assets to any other Person, and the Company shall not permit any Person to consolidate or amalgamate with or merge into the Company, unless:
(1) in the event the Company shall consolidate or amalgamate with or merge into another Person or convey, transfer or lease all
or substantially all of the Company’s properties and assets to any Person, the Person formed by such consolidation or amalgamation or into which the Company is merged, or the Person that acquires by conveyance or transfer, or leases, all or
substantially all of the Company’s properties and assets, shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance and observance
of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving
effect to such transaction and treating any Indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event
of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.2.
Successor Substituted
.
Upon any consolidation by the Company with or merger by the Company into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company
42
substantially as an entirety in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
Section 9.1.
Supplemental Indentures Without Consent of Holders
.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee (at the direction of the Company) at
any time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of
all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or any series
of Securities (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series); or
(4) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(5) to make a change to the Securities of any series that does not adversely affect the rights of any Holder of the Securities
of such series; or
(6) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or
(7) 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 to add to or
43
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 6.11(b); or
(8) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities
of any series in any material respect;
(9) to comply with any requirement of the Commission in order to effect or maintain
the qualification of this Indenture under the Trust Indenture Act; or
(10) to conform the Indenture or the Securities to
the description thereof in the related prospectus, offering memorandum or disclosure document.
Section 9.2.
Supplemental Indentures with Consent
of Holders
.
(a) With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each
series so affected by such supplemental indenture, by Act of such Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee (at the direction of the Company) may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of the Securities of such series or of modifying in any manner the rights of the Holders
of Securities of such series under this Indenture. Without the consent of the Holder of each Outstanding Security directly affected thereby, a supplemental indenture under this Section 9.2 shall not (with respect to any Outstanding Security
held by a non-consenting Holder):
(1) change the Stated Maturity of, the principal of, or any installment of principal of
or interest on, any such Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Acceleration Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change any Place of Payment where, or the currency in which, such Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of the series for such Outstanding Security, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section 9.2, Section 5.13 or
Section 10.6, except to increase any such percentage or to provide that certain other provisions of
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this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security directly affected thereby;
provided
,
however
, that this clause shall not
be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 6.11(b) and
9.1(8).
(b) A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
(c) It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
(d) The Company may set a record date for purposes of determining the identity of Holders of Securities entitled to consent pursuant to this
Section. Such record date shall be the later of (i) 30 days prior to the first solicitation of such consent or (ii) the date of the most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to
Section 7.1.
Section 9.3.
Execution of Supplemental Indentures
.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and complies with the provisions hereof (including Section 9.5). The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties, or immunities or liabilities under this Indenture or otherwise.
Section 9.4.
Effect of Supplemental
Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5.
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
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Section 9.6.
Reference in Securities to Supplemental Indentures
.
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and executed by the Company, and such Securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.1.
Payment of Principal, Premium and Interest
.
(a) The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
(b) An
installment of principal or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay such installment and is not prohibited from paying such money to the
Holders pursuant to the terms of this Indenture or otherwise.
Section 10.2.
Maintenance of Office or Agency
.
(a) The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations;
provided
,
however
, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
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Section 10.3.
Money for Securities Payments to Be Held in Trust
.
(a) If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date
of the principal of (and premium, if any) or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
(c) The Company will cause each Paying Agent for any series of Securities other than the Trustee or the Company to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series
in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any) or interest on the Securities of that series; and
(3) at any time
during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
(d) The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series, and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request or (if then held by
the Company) shall be discharged from such trust; and the Holder of
47
such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 10.4.
Corporate Existence
.
Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence.
Section 10.5.
Statement by Officers as to Default
.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an
Officers’ Certificate stating whether or not to the knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions applicable to the Company and, if the Company shall
be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. If any default or Event of Default under clauses (4), (5), or (6) of Section 5.1 has occurred and is continuing, within 10
Business Days after its becoming aware of such occurrence the Company shall deliver to the Trustee an Officers’ Certificate specifying such event and what action the Company is taking or proposes to take with respect thereto.
Section 10.6.
Waiver of Covenant
.
(a) The Company may omit in any particular instance to comply with any term, provision or condition set forth in any indenture supplemental
hereto with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect, provided, that without the consent of the Holder of each Outstanding Security directly
affected thereby, a waiver under this Section 10.6 shall not (with respect to any Outstanding Security held by a non-consenting Holder):
(1) change the Stated Maturity of, the principal of, or any installment of principal of or interest on, any such Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Acceleration Discount Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.2, or change any Place of Payment where, or the currency in which, such Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the
percentage in principal amount of the Outstanding Securities of the series for such Outstanding Security, the consent of whose Holders is required for any supplemental indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or
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(3) modify any of the provisions of this Section 10.6, Section 5.13 or
Section 9.2, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security directly affected thereby;
provided
,
however
, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso,
in accordance with the requirements of Sections 6.11(b) and 9.1(8).
(b) The Company may set a record date for purposes of determining the
identity of Holders of Securities entitled to waive compliance pursuant to this Section. Such record date shall be the later of (i) 30 days prior to the first solicitation of such waiver or (ii) the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 7.1.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1.
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series) in accordance with this Article.
Section 11.2.
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities of like tenor of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be redeemed. Any such notice may be cancelled at any time prior to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restriction.
Section 11.3.
Selection by Trustee of Securities to Be Redeemed
.
(a) If less than all the Securities of like tenor of any series are to be redeemed, the particular Securities to be redeemed shall be selected
by the Trustee, from the Outstanding
49
Securities of like tenor of such series not previously called for redemption, by lot or any other such method as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than the minimum authorized
denomination for such Securities.
(b) The Trustee shall promptly notify the Company in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
(c) For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
Section 11.4.
Notice of Redemption
.
(a) Unless otherwise indicated for a particular series of Securities by Board Resolution, a supplemental indenture hereto or an Officer’s
Certificate, notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at such Holder’s address appearing
in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of like tenor of any series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security
is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after such date,
(6) the CUSIP number and/or similar numbers of such Securities, if any (or any other numbers used by a Depositary to identify
such Securities),
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(7) the place or places where such Securities are to be surrendered for payment
of the Redemption Price, and
(8) that the redemption is for a sinking fund, if such is the case.
(b) Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company.
Section 11.5.
Deposit of Redemption Price
.
At least one Business Day prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, the Company shall segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.6.
Securities Payable on Redemption Date
.
(a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified and, from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with such notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
(b) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.7.
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
Section 12.1.
Applicability of Article
.
(a) The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified in accordance with Section 3.1 for Securities of such series.
(b) The minimum
amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 12.2.
Satisfaction of Sinking Fund Payments with Securities
.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as
a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 12.3.
Redemption of Securities for Sinking Fund
.
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.2 and will also deliver to the Trustee any such Securities. Not less than 30
days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.3 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.6 and 11.7.
52
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.1.
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance
.
Unless pursuant to Section 3.1 provision is made for either or both of (a) defeasance of the Securities of a series under
Section 13.2 not to be applicable with respect to the Securities of such series or (b) covenant defeasance of the Securities of a series under Section 13.3 not to be applicable with respect to the Securities of such series, then the
provisions of such Sections together with the other provisions of this Article XIII, shall be applicable to the Securities of such series, and the Company may at its option by or pursuant to a Board Resolution, at any time, with respect to the
Securities of such series, elect to have either Section 13.2 or Section 13.3 be applied to the Outstanding Securities of such series upon compliance with the conditions set forth below in this Article XIII.
Section 13.2.
Defeasance and Discharge
.
Upon the Company’s exercise of the option set forth in Section 13.1 applicable to this Section, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund described in Section 13.4 and as more fully set forth therein, payments in respect of the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company’s obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (C) the rights, powers, trusts, duties, and immunities of the Trustee under Sections 3.5, 3.6, 3.7, 3.9, 4.2,
6.7 and Section 10.3(e), and otherwise the duty of the Trustee to authenticate Securities of such series issued on registration of transfer or exchange and (D) this Article XIII. Subject to compliance with this Article XIII, the Company
may exercise its option under this Section 13.2 notwithstanding the prior exercise of its option under Section 13.3 with respect to the Securities of such series.
Section 13.3.
Covenant Defeasance
.
Upon the Company’s exercise of the option set forth in Section 13.1 applicable to this Section, the Company shall be released from
its obligations under Sections 7.4, 8.1(2), 10.5 and any other covenants to be applicable to the Securities of a series as specified pursuant to Section 3.1 unless specified otherwise pursuant to such Section (and the failure to comply with any
such provisions shall not constitute a default or Event of Default under Section 5.1), and the
53
occurrence of any event described in Section 5.1(4) and (7) and any other events of default to be applicable to the Securities of a series as specified pursuant to Section 3.1
unless specified otherwise pursuant to such Section shall not constitute a default or Event of Default hereunder, with respect to the Outstanding Securities of such series on and after the date the conditions set forth below are satisfied
(hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section with respect to it, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein
or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.4.
Conditions to
Defeasance or Covenant Defeasance
.
The following shall be the conditions to application of either Section 13.2 or
Section 13.3 to the Outstanding Securities of any series:
(a) the Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.9 who shall agree to comply with the provisions of this Article XIII applicable to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of the holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) on
and each installment of principal of (premium, if any) and interest on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. For this purpose, “U.S. Government
Obligations” means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended from time to time) as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt,
provided
that
(except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt;
54
(b) no Event of Default with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit (other than an Event of Default resulting from borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to other indebtedness, and in each case, the grant of any lien
securing such borrowing);
(c) such defeasance or covenant defeasance shall not cause the Trustee for the Securities of such series to
have a conflicting interest for purposes of the Trust Indenture Act with respect to any securities of the Company;
(d) such defeasance or
covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound (other than an Event of Default resulting from borrowing of
funds to be applied to such deposit and any similar and simultaneous deposit relating to other indebtedness, and in each case, the grant of any lien securing such borrowing);
(e) such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities
exchange under the Exchange Act, to be delisted;
(f) in the case of an election under Section 13.2, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable
U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g) in the case of an election under Section 13.3, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(h) such defeasance or
covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1; and
(i) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein relating to either the defeasance under Section 13.2 or the covenant defeasance under Section 13.3, as the case may be, have been complied with.
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Section 13.5.
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions
.
(a) Subject to the provisions of Section 10.3(e), all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively, for purposes of this Section 13.5, the “Trustee”) pursuant to Section 13.4 in respect of the Outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own paying agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of the principal of (and premium, if any) and interest on such Securities, but such money need not be segregated from other funds except to the extent
required by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to Section 13.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding
Securities of such series.
(c) Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 13.4 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance.
* * * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[The remainder of this page intentionally left blank.]
56
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
date first above written.
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ISSUER:
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THE HANOVER INSURANCE GROUP, INC.
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By:
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/s/ Frederick H. Eppinger, Jr.
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Name:
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Frederick H. Eppinger, Jr.
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Title:
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President and Chief Executive Officer
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Attest:
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By:
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/s/ J. Kendall Huber
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Name:
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J. Kendall Huber
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Title:
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Executive Vice
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President and General Counsel
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TRUSTEE:
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U.S. BANK NATIONAL ASSOCIATION
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By:
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/s/ David W. Doucette
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Name:
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David W. Doucette
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Title:
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Vice President
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Exhibit 4.2
[Execution Version]
THE
HANOVER INSURANCE GROUP, INC.,
as Issuer
and
U.S. Bank National
Association,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 8, 2016
to the Indenture dated as of April 8, 2016
4.500% Notes due 2026
TABLE OF CONTENTS
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Page
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ARTICLE 1 APPLICATION OF SUPPLEMENTAL INDENTURE
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1
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Section 1.01.
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Application of First Supplemental Indenture.
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1
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ARTICLE 2 DEFINITIONS
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2
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Section 2.01.
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Certain Terms Defined in the Indenture.
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2
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Section 2.02.
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Definitions.
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2
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ARTICLE 3 FORM AND TERMS OF THE NOTES
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4
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Section 3.01.
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Form and Dating.
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4
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Section 3.02.
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Execution and Authentication.
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4
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Section 3.03.
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Paying Agent.
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4
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Section 3.04.
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Terms of the Notes.
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4
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Section 3.05.
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Optional Redemption.
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6
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Section 3.06.
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Certain Interest Payments.
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6
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ARTICLE 4 CERTAIN COVENANTS
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6
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Section 4.01.
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Restrictions on Issuance or Disposition of Stock of Restricted Subsidiaries.
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7
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Section 4.02.
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Limitations on Liens.
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7
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ARTICLE 5 MISCELLANEOUS
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8
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Section 5.01.
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Trust Indenture Act Controls.
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8
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Section 5.02.
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New York Law to Govern.
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8
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Section 5.03.
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Counterparts.
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8
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Section 5.04.
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Severability.
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8
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Section 5.05.
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Ratification.
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9
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Section 5.06.
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Effectiveness.
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9
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Section 5.07.
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Trustee Makes No Representation.
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9
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EXHIBIT A – Form of $375,000,000 4.500% Note due 2026
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A-1
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i
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of April 8, 2016, between The Hanover Insurance
Group, Inc., a Delaware corporation (the “Company”), and U.S. Bank National Association, as Trustee (the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS
, the Company and the Trustee executed and delivered an Indenture, dated as of April 8, 2016 (the “Base
Indenture,” and together with this First Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from time to time of Securities to be issued in one or more series as provided in the Base Indenture;
WHEREAS
, Section 9.1 of the Base Indenture provides, among other things, that the Company and the Trustee may enter into
indentures supplemental to the Base Indenture, without the consent of any Holders of Securities, to establish the form of any Security, as permitted by Section 2.1 of the Base Indenture, and to provide for the issuance of the Notes (as defined
below), as permitted by Section 3.1 of the Base Indenture, and to set forth the terms thereof;
WHEREAS
, the Company desires
to execute this First Supplemental Indenture pursuant to Section 2.1 of the Base Indenture to establish the form, and pursuant to Section 3.1 of the Base Indenture to provide for the issuance, of a series of its senior notes designated as
its 4.500% Notes due 2026 (the “Notes”), in an initial aggregate principal amount of $375,000,000. The Notes are a series of securities as referred to in Section 3.1 of the Base Indenture;
WHEREAS
, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture;
WHEREAS
, all things necessary have been done by the Company to make this First Supplemental Indenture, when executed and delivered by
the Company, a valid supplement to the Indenture; and
WHEREAS
, all things necessary have been done by the Company to make the
Notes, when executed by the Company and authenticated and delivered in accordance with the provisions of the Indenture, the valid obligations of the Company;
NOW, THEREFORE
, in consideration of the premises stated herein and the purchase of the Notes by the Holders thereof, the Company and
the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Notes as follows:
ARTICLE 1
APPLICATION
OF SUPPLEMENTAL INDENTURE
SECTION 1.01.
Application of First Supplemental Indenture
. Notwithstanding any other provision
of this First Supplemental Indenture, all provisions of this First Supplemental Indenture are expressly and solely for the benefit of the Holders of the Notes
1
and any such provisions shall not be deemed to apply to any other securities issued under the Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose
other than with respect to the Notes. Unless otherwise expressly specified, references in this First Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and Sections contained in this Supplemental Indenture as
they amend or supplement the Base Indenture, and not the Base Indenture or any other document. All Initial Notes and Additional Notes, if any, shall be treated as a single class for all purposes of this Indenture, including waivers, amendments,
redemptions and offers to purchase, except for Additional Notes, if any issued with a different CUSIP number.
ARTICLE 2
DEFINITIONS
SECTION 2.01.
Certain Terms Defined in the Indenture
. For purposes of this First Supplemental Indenture, all capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in the Base Indenture, as amended hereby.
SECTION 2.02.
Definitions
. For the benefit of the Holders of the Notes, Section 1.1 of the Base Indenture shall be amended by adding the following new definitions:
“Additional Notes” has the meaning specified in Section 3.04(b) hereto.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as
having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt
securities of a comparable maturity to the remaining term of such Notes.
“Comparable Treasury Price” means, with respect to any
Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
“Consolidated Assets” mean the Company’s assets
and the assets of the Company’s consolidated subsidiaries, to be determined as of the last day of the most recent fiscal quarter ended at least 30 days prior to the date of the determination, for which internal financial statements are
available and have been prepared in accordance with generally accepted accounting principles in the United States as in effect on the last day of that fiscal quarter.
“Global Note” has the meaning specified in Section 3.01(c) and is substantially in the form of Exhibit A.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.
“Initial Notes” has the meaning specified in Section 3.04(b) hereto.
2
“Lien” means any lien, mortgage, pledge, security interest, charge or encumbrance of
any kind (including any conditional sale or other title retention agreement and any lease in the nature thereof).
“Notes” has
the meaning specified in the recitals hereto.
“Preferred Stock,” as applied to the Capital Stock of any corporation, means
Capital Stock of any class or classes (however designated) which is preferred as to the payment of the dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.
“Reference Treasury Dealer” means each of (i) J.P. Morgan Securities
LLC, a Primary Treasury Dealer (defined herein) selected by Wells Fargo Securities, LLC or its affiliates and a Primary Treasury Dealer selected by Lloyds Securities Inc. or its affiliates; and (ii) up to three other primary U.S. Government
securities dealers in the City of New York (each, a “Primary Treasury Dealer”) selected by the Company, and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a Primary
Treasury Dealer, the Company shall substitute therefor another such Primary Treasury Dealer.
“Reference Treasury Dealer
Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding such Redemption Date.
“Restricted Subsidiary” means (i) any Subsidiary the assets of which, determined as of the last day of the most recent fiscal
quarter ended at least 30 days prior to the date of determination, for which internal financial statements are available and have been prepared in accordance with generally accepted accounting principles in the United States as in effect on the last
day of that fiscal quarter, exceed 15% of the Consolidated Assets, or (ii) any Subsidiary designated as a Restricted Subsidiary by the board of directors, or similar governing body, of such Subsidiary, effective as of the date of such
designation.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent
yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
3
ARTICLE 3
FORM AND TERMS OF THE NOTES
SECTION 3.01.
Form and Dating
.
(a) The Notes and the Trustee’s certificate of authentication shall be substantially in the form of
Exhibit A
attached hereto. The Notes shall be executed on behalf of the Company by an Officer of the Company and attested by its Secretary or one of its Assistant Secretaries. The Notes may have notations, legends or endorsements required by law, stock
exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes and any beneficial interest in the Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(b) The terms and notations contained in the Notes shall constitute, and are hereby expressly made, a part of the Indenture,
and the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
(c) The Notes shall be issued initially in the form of fully registered Global Securities (the “Global Note”), which
shall be deposited on behalf of the purchasers of the Notes represented thereby with The Depository Trust Company, New York, New York (the “Depositary”) and registered in the name of Cede & Co., the Depositary’s nominee, duly
executed by the Company, authenticated by the Trustee.
SECTION 3.02.
Execution and Authentication
. This Section 3.02
shall apply only to the Global Note deposited with or on behalf of the Depositary. The Company shall execute and the Trustee shall, in accordance with this Section 3.02, authenticate and deliver the Global Note that shall be registered in the
name of the Depositary or the nominee of the Depositary and shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions.
SECTION 3.03.
Paying Agent
. The Company initially appoints the Trustee as Paying Agent for the payment of the principal of (and
premium, if any) and interest on the Notes and the office of the Trustee at U.S. Bank National Association, One Federal Street, 3
rd
Floor, Boston, Massachusetts 02110, Attention: Corporate Trust
Services, Reference # Hanover 2016 be and hereby is, designated as the Place of Placement where the Notes may be presented for payment.
SECTION 3.04.
Terms of the Notes
. The following terms relating to the Notes are hereby established:
(a)
Title
. The Notes shall constitute a series of Securities having the title “4.500% Notes due 2026”.
(b)
Principal Amount.
The aggregate principal amount of the Notes that may be initially authenticated and delivered
under the Indenture (the “Initial Notes”) shall be $375,000,000 (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7
of the Base Indenture). The Company may from time to time, without the consent of, or notice to, the Holders of Notes, issue additional Notes (in any such case “Additional Notes”) having the same ranking and the same interest rate,
Maturity and other terms as the Initial Notes (other than the public offering price and date of issuance
4
and, under certain circumstances, the date from which interest thereon will begin to accrue), provided, however, that no Additional Notes may be issued unless the Additional Notes are fungible
with the Notes for U.S. federal income tax purposes or issued with a different CUSIP number. Any Additional Notes and the Initial Notes shall constitute a single series under the Indenture unless the Additional Notes are issued with a different
CUSIP number. All references to the Notes shall include the Initial Notes and any Additional Notes unless the context otherwise requires or the Additional Notes are issued with a different CUSIP number.
(c)
Maturity Date
. The entire outstanding principal amount of the Notes shall be payable on April 15, 2026.
(d)
Interest Rate
. The rate at which the Notes shall bear interest shall be 4.500% per annum; the date from which
interest shall accrue on the Notes shall be April 8, 2016, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be April 15 and October 15 of each
year, beginning October 15, 2016; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid, in immediately available funds, to the Persons in whose names the Note (or predecessor Note) is
registered (which shall initially be the Depositary) at the close of business on the Regular Record Date for such interest, which shall be April 1 or October 1, as the case may be, next preceding such Interest Payment Date. Interest shall
be computed on the basis of a
360-day
year comprised of twelve 30-day months. For so long as the Notes are represented in global form by one or more Global Securities, all payments of principal (and premium,
if any) and interest shall be made by wire transfer of immediately available funds to the Depositary or its nominee, as the case may be, as the registered owner of the Global Security representing such Notes. In the event that definitive Notes shall
have been issued, all payments of principal (and premium, if any) and interest shall be made at the office of the Paying Agent at One Federal Street, 3rd Floor, Boston, Massachusetts 02110, Attention: Corporate Trust Services, Reference # Hanover
2016;
provided
, that the Company may at its option pay interest (i) by check to the registered address of each Holder of a definitive Note or (ii) by wire transfer of immediately available funds to the account of any registered
Holder thereof, in each of cases (i) and (ii), if such Holder so requests in writing to the Trustee at least 15 days prior to the relevant Interest Payment Date.
(e)
Sinking Fund
. The Notes are not subject to any sinking fund.
SECTION 3.05.
Optional Redemption
.
(a) The provisions of Article 11 of the Base Indenture, as supplemented by the provisions of this First Supplemental
Indenture, shall apply to the Notes.
(b) At any time and from time to time to January 15, 2026, the Notes shall be
redeemable as a whole or in part in integral multiples of $1,000 principal amount, at the Company’s option (an “Optional Redemption”), at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Notes to
be redeemed and (ii) the sum
5
of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued and unpaid to the date of redemption) discounted to the Redemption Date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 45 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the date of redemption.
(c) At any time and from time to time on or after January 15, 2026, the Company may redeem the Notes as a whole or in
part, at the Company’s option (a “Special Redemption”), at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed, plus in each case accrued and unpaid interest thereon to, but not including, the date of
redemption.
(d) Further installments of interest on the Notes to be redeemed that are due and payable on the Interest
Payment Dates falling on or prior to the Redemption Date shall be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant Regular Record Date according to the Notes and the Indenture.
(e) Notice of any Optional Redemption or Special Redemption under this Section 3.05 will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed; provided, however, that notice of any Optional Redemption or Special Redemption may be mailed more than 60 days prior to the Redemption Date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of Notes. If fewer than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by lot or any other such method as
the Trustee deems to be fair and appropriate.
(f) Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for Optional Redemption or Special Redemption, as the case my be, under this Section 3.05.
SECTION 3.06.
Certain Interest Payments
.
(a) Installments of interest that are due and payable on Notes to be repurchased or redeemed on a Redemption Date between a
Regular Record Date and an Interest Payment Date shall be payable on the Redemption Date to the registered Holders as of the close of business on the relevant Regular Record Date according to the Notes and the Indenture.
ARTICLE 4
CERTAIN
COVENANTS
The following covenants shall be applicable to the Company for so long as any of the Notes are Outstanding. Nothing in this
Article will, however, affect the Company’s rights or obligations under any other provision of the Base Indenture or this First Supplemental Indenture.
6
SECTION 4.01.
Restrictions on Issuance or Disposition of Stock of Restricted
Subsidiaries
.
(a) The Company will not, nor will it permit any Restricted Subsidiary to, issue, sell or otherwise
dispose of any shares of Capital Stock (other than non-voting Preferred Stock) of any Restricted Subsidiary, except for:
(i) directors’ qualifying shares;
(ii) sales or other dispositions to the Company or to one or more Subsidiaries that are Restricted Subsidiaries or that will
become Restricted Subsidiaries immediately after the sale or disposition;
(iii) the disposition of all or any part of the
Capital Stock of any Restricted Subsidiary for consideration which is at least equal to the fair value of such Capital Stock as determined by the Company’s or such Restricted Subsidiary’s board of directors, as the case may be (acting in
good faith), in any case in accordance with the laws of the jurisdiction of formation of such Person;
provided
,
however
, that any such Capital Stock issued, sold, granted, transferred or otherwise disposed of to any employee, officer,
director, agent or consultant pursuant to any agreement, plan or arrangement approved by the board of directors of the Company or such Restricted Subsidiary, as appropriate, shall be deemed to be issued, sold or otherwise disposed of at fair value;
or
(iv) any issuance, sale, assignment, transfer or other disposition made in compliance with an order of a court or
regulatory authority of competent jurisdiction, other than an order issued at the request of the Company or any Restricted Subsidiary.
SECTION 4.02.
Limitations on Liens
.
(a) Except as provided below, neither the Company nor any Restricted Subsidiary may incur, issue, assume or guarantee any
Indebtedness secured by a Lien on (A) any shares of Capital Stock issued by a Restricted Subsidiary and held directly or indirectly by the Company or another Restricted Subsidiary or (B) any Indebtedness of a Restricted Subsidiary owing to
and held directly or indirectly by the Company or another Restricted Subsidiary, without effectively providing that the Notes (together with, if the Company shall so determine, any other Indebtedness which is not subordinated to the Notes) shall be
secured equally and ratably with (or prior to) such Indebtedness, so long as such Indebtedness shall be so secured;
provided
,
however
, that this covenant shall not apply to Indebtedness secured by:
(i) Liens in favor of, or required by, governmental authorities, including insurance regulatory authorities;
(ii) Liens existing on the date of this First Supplemental Indenture;
7
(iii) Liens on any shares of Capital Stock or Indebtedness of any corporation
(including any Subsidiary) (a) existing at the time such corporation becomes a Restricted Subsidiary or merges into or consolidates with the Company or a Restricted Subsidiary and (b) not incurred in contemplation thereof;
(iv) Liens in favor of the Company or any Restricted Subsidiary;
(v) Liens, pledges or deposits to secure statutory obligations, including Liens and deposits required or provided for under
state insurance laws and similar regulatory statutes;
(vi) materialmen’s, mechanic’s, carrier’s,
workmen’s, repairmen’s, or other like Liens, and pledges and deposits made in the ordinary course of business to obtain the release thereof; and
(vii) any extension, renewal or replacement as a whole or in part, of any Lien referred to in the foregoing clauses (i) to
(vi) inclusive;
provided
,
however
, that (a) such extension, renewal or replacement Lien shall be limited to all or a part of the same shares of Capital Stock or the same Indebtedness that secured the Lien extended, renewed or
replaced and (b) the Indebtedness secured by such Lien at such time is not so increased.
Any Lien that is granted to secure the
Notes pursuant to this covenant shall be deemed automatically and unconditionally released and discharged upon the release and discharge of each of the Liens described above that triggered the obligation to secure the Notes.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01.
Trust Indenture Act Controls
. If any provision of this First Supplemental Indenture limits, qualifies or
conflicts with another provision which is required to be included in this First Supplemental Indenture by the TIA, the required provision shall control. If any provision of this First Supplemental Indenture modifies or excludes any provision of the
TIA which may be so modified or excluded, the latter provision shall be deemed to apply to this First Supplemental Indenture as so modified or to be excluded, as the case may be.
SECTION 5.02.
New York Law to Govern
. The First Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 5.03.
Counterparts
. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 5.04.
Severability
. If any provision of this First Supplemental Indenture or the Notes shall be held to be illegal or
unenforceable under applicable law, then the remaining provisions hereof shall be construed as though such invalid, illegal or unenforceable provision were not contained therein.
8
SECTION 5.05.
Ratification
. The Base Indenture, as supplemented and amended by this
First Supplemental Indenture, is in all respects ratified and confirmed. The Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this First Supplemental Indenture supersede any conflicting
provisions included in the Base Indenture unless not permitted by law. The Trustee accepts the trusts created by the Indenture, and agrees to perform the same upon the terms and conditions of the Indenture.
SECTION 5.06.
Effectiveness
. The provisions of this First Supplemental Indenture shall become effective as of the date hereof.
SECTION 5.07.
Trustee Makes No Representation
. The recitals contained herein are made by the Company and not by the Trustee,
and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture. All rights, protections, privileges, indemnities and benefits granted
or afforded to the Trustee under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act under this First Supplemental Indenture.
[Remainder of page intentionally left blank.]
9
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly
executed as of the date first above written.
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THE HANOVER INSURANCE GROUP, INC.
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By:
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/s/ Eugene M. Bullis
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Name:
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Eugene M. Bullis
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Title:
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Executive Vice President and
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Chief Financial Officer
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Attest:
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By:
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/s/ Charles F. Cronin
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Name:
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Charles F. Cronin
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Title:
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Vice President, Group
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Counsel – Corporate and
Secretary
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[
Signature Page to
Hanover - First Supplemental Indenture
]
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U.S. BANK NATIONAL ASSOCIATION
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By:
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/s/ David W. Doucette
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Name:
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David W. Doucette
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Title:
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Vice President
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[
Signature Page to
Hanover - First Supplemental Indenture
]
EXHIBIT A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN THE
INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE ONLY IN LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE
OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HANOVER INSURANCE GROUP, INC.
4.500% Note due 2026
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No. 1
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Principal Amount
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CUSIP No. 410867AF2
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$375,000,000
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The Hanover Insurance Group, Inc., a Delaware corporation (hereinafter called the “Company”, which
term includes any successor Person under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of Three Hundred Seventy-Five Million U.S. Dollars (U.S.
$375,000,000) on April 15, 2026 and to pay interest thereon from April 8, 2016 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on April 15 and October 15 in each
year (each an “Interest Payment Date”), beginning October 15, 2016 at the rate of 4.500% per annum, until the principal hereof is paid or duly made available for payment. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date shall, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be the April 1 or October 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date shall forthwith
1
cease to be payable to the Holder hereof on the relevant Regular Record Date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Notes not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of (and premium, if any) and the interest on this Note shall be made at the
designated office of the Trustee (as defined below) at U.S. Bank National Association, One Federal Street, 3
rd
Floor, Boston Massachusetts 02110, Attention: Corporate Trust Services, Reference #
Hanover 2016 in such currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;
provided
,
however
, for so long as the Notes are represented in global form by one or more
Global Securities, all payments of principal (and premium, if any) and interest shall be made by wire transfer of immediately available funds to the Depositary or its nominee, as the case may be, as the registered owner of the Global Security
representing such Notes. In the event that definitive Notes shall have been issued, all payments of principal (and premium, if any) and interest shall be made at the office of the Paying Agent at One Federal Street, 3rd Floor, Boston, Massachusetts
02110, Attention: Corporate Trust Services, Reference # Hanover 2016;
provided
, that the Company may at its option pay interest (i) by check to the registered address of each Holder of a definitive Note or (ii) by wire transfer of
immediately available funds to the account of any registered Holder thereof, in each of cases (i) and (ii), if such Holder so requests in writing to the Trustee at least 15 days prior to the relevant Interest Payment Date.
This Note is one of the duly authorized series of Securities of the Company, designated as the Company’s “4.500% Notes due
2026”, initially limited to an aggregate principal amount of $375,000,000, all issued or to be issued under and pursuant to an Indenture (the “Base Indenture”), dated as of April 8, 2016, between the Company and U.S. Bank
National Association, as Trustee (hereinafter referred to as the “Trustee”), as supplemented by the First Supplemental Indenture thereto, dated as of April 8, 2016 (the “First Supplemental Indenture”, and together with the
Base Indenture, the “Indenture”). Reference is hereby made to the Indenture for a description of the respective rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the
Notes.
At any time and from time to time prior to January 15, 2026, the Company may redeem the Notes as a whole or in part, at the
Company’s option (an “Optional Redemption”), at a Redemption Price equal to the greater of: (i) 100% of the principal amount of the Notes to be redeemed; and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued and unpaid to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate; plus 45 basis points, plus in each case accrued and unpaid interest thereon to, but not including, the date of redemption.
At any
time and from time to time on or after January 15, 2026, the Company may redeem the Notes as a whole or in part, at the Company’s option (a “Special Redemption”), at a Redemption Price equal to 100% of the principal amount of the
Notes being redeemed, plus in each case accrued and unpaid interest thereon to, but not including, the date of redemption.
2
Further installments of interest on the Notes to be redeemed that are due and payable on the
Interest Payment Dates falling on or prior to a Redemption Date shall be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant Regular Record Date.
Notice of any Optional Redemption or Special Redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date
to each Holder of Notes to be redeemed;
provided
,
however
, that notice of Optional Redemption or Special Redemption may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of Notes.
If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be
selected by the Trustee by lot or any other such method as the Trustee deems to be fair and appropriate.
Unless the Company defaults in
payment of the Redemption Price, on and after the Redemption Date, interest shall cease to accrue on the Notes or portions thereof called for redemption under an Optional Redemption or Special Redemption.
The Notes are not subject to any sinking fund.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or impair the right of the Holder of this Note, which is absolute and unconditional, to receive payment of the principal of and, subject to certain qualifications in the
Indenture, interest on this Note at the times herein and in the Indenture prescribed and to institute suit for the enforcement of any such payment unless the Holder of this Note shall have consented to the impairment of such right.
3
As provided in the Indenture and subject to certain limitations set forth therein, the transfer
of this Note may be registered in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Note are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of any authorized denominations and of a like aggregate principal amount and tenor, shall be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Subject to certain limitations therein set forth in the Indenture and in this Note, the Notes are exchangeable for a like aggregate principal amount of Notes of this series in different authorized denominations, as requested by the Holders
surrendering the same.
No service charge shall be made for any such registration of transfer or for exchange of this Note, but the
Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of a Note, other than in certain cases provided in the
Indenture.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged from its obligations with respect to the Notes (subject
to certain exceptions) or (ii) the Company may be released from its obligations under specified covenants and agreements in the Indenture, in each case if the Company irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on all Notes of this series, and satisfies certain other conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee under the Indenture by the manual signature
of one of its authorized signatories, this Note shall not be entitled to any benefits under the Indenture or be valid or obligatory for any purpose.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: April 8, 2016
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THE HANOVER INSURANCE GROUP, INC.
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Attest:
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By:
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Name:
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Name:
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Title:
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Title:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: April 8, 2016
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Name:
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Title:
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations.
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TEN COM –
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as tenants
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UNIF GIFT MIN ACT - . . .Custodian..
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in common
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(Cust) (Minor)
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TEN ENT -
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as tenants by
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Under Uniform Gifts to
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the entireties
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Minor Act
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JT TEN - as joint tenants
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with right of
survivorship and
not as tenants in
common
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(State)
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Additional abbreviations may also be used though not in the above list.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
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(Please insert Assignee’s legal name)
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(Please insert Social Security or other identifying number of Assignee)
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(Please print or typewrite name and address including postal zip code of Assignee)
the within Note of THE HANOVER INSURANCE GROUP, INC. and does hereby irrevocably
constitute and appoint
attorney to transfer the said Note on the books of the Company, with full power of substitution in the
premises.
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Dated:
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Your Signature:
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(Sign exactly as your name appears
on the face of this Note)
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[NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]
