-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E5h2rClAfIiHJiLkZ+/wY4WYDtli4WWB90iiDO4ds+V4ySFaS2BjXLgRNABRnbJD nGhpYBLLI7mVjwThfdC5lg== 0000950131-00-003568.txt : 20000524 0000950131-00-003568.hdr.sgml : 20000524 ACCESSION NUMBER: 0000950131-00-003568 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 29 FILED AS OF DATE: 20000523 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MUTUAL RISK MANAGEMENT LTD CENTRAL INDEX KEY: 0000826918 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 000000000 STATE OF INCORPORATION: D0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-96425 FILM NUMBER: 641988 BUSINESS ADDRESS: STREET 1: 44 CHURCH ST STREET 2: BERMUDA CITY: HAMILTON HM 12 BERMU STATE: D0 BUSINESS PHONE: 4412955688 MAIL ADDRESS: STREET 1: PO BOX 2064 STREET 2: BERMUDA CITY: HAMILTON HM HX STATE: D0 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MUTUAL GROUP LTD CENTRAL INDEX KEY: 0001105509 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-96425-01 FILM NUMBER: 641989 BUSINESS ADDRESS: STREET 1: ONE LOGAN SQUARE SUITE 1500 CITY: PHILADELPHIA STATE: PA ZIP: 19103 BUSINESS PHONE: 4412955688 MAIL ADDRESS: STREET 1: PO BOX 2064 STREET 2: BERMUDA CITY: HAMILTON HM HX STATE: D0 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MRM CAPITAL TRUST I CENTRAL INDEX KEY: 0001105510 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-96425-02 FILM NUMBER: 641990 BUSINESS ADDRESS: STREET 1: ONE LOGAN SQUARE SUITE 1500 CITY: PHILADELPHIA STATE: PA ZIP: 19103 BUSINESS PHONE: 4412955688 MAIL ADDRESS: STREET 1: PO BOX 2064 STREET 2: BERMUDA CITY: HAMILTON HM HX STATE: D0 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MRM CAPITAL TRUST II CENTRAL INDEX KEY: 0001105511 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-96425-03 FILM NUMBER: 641991 BUSINESS ADDRESS: STREET 1: ONE LOGAN SQUARE SUITE 1500 CITY: PHILADELPHIA STATE: PA ZIP: 19103 BUSINESS PHONE: 4412955688 MAIL ADDRESS: STREET 1: PO BOX 2064 STREET 2: BERMUDA CITY: HAMILTON HM HX STATE: D0 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MRM CAPITAL TRUST III CENTRAL INDEX KEY: 0001105512 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-96425-04 FILM NUMBER: 641992 BUSINESS ADDRESS: STREET 1: ONE LOGAN SQUARE SUITE 1500 CITY: PHILADELPHIA STATE: PA ZIP: 19103 BUSINESS PHONE: 4412955688 MAIL ADDRESS: STREET 1: PO BOX 2064 STREET 2: BERMUDA CITY: HAMILTON HM HX STATE: D0 S-3/A 1 AMENDMENT NO. 1 TO FORM S-3/A As filed with the Securities and Exchange Commission on May 23, 2000 Registration No. 333-96425 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- AMENDMENT NO. 1 to FORM S-3 REGISTRATION STATEMENT Under The Securities Act of 1933 ---------------- MUTUAL RISK MANAGEMENT LTD. (Exact name of registrant as specified in its charter) ---------------- Bermuda N/A (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address, including zip code, and Philadelphia, PA 19103 telephone number, including area code, (215) 963-1600 of Registrant's principal executive (Name, address, including zip code, and offices) telephone number, including area code, of agent for service) ---------------- MUTUAL GROUP LTD. (Exact name of registrant as specified in its charter) Delaware 51-0239964 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, and Philadelphia, PA 19103 telephone number, including area code, (215) 963-1600 of Registrant's principal executive (Name, address, including zip code, and offices) telephone number, including area code, of agent for service) ---------------- MRM CAPITAL TRUST I MRM CAPITAL TRUST II MRM CAPITAL TRUST III (Exact name of registrant as specified in its certificate of trust) Delaware Each Applied for (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, and Philadelphia, PA 19103 telephone number, (215) 963-1600 including area code, of registrant's (Name, address, including zip code, and principal executive offices) telephone number, including area code, of agent for service) Copies to: Richard E. O'Brien, Esq. Richard Warren Shepro, John M. Vasily, Esq. Senior Vice President & Esq. Peter J. Loughran, Esq. General Counsel Carol S. Rivers, Esq. Debevoise & Plimpton Mutual Risk Management Mayer, Brown & Platt 875 3rd Avenue Ltd. 190 South LaSalle Street New York, NY 10022 44 Church Street Chicago, Illinois 60603- (212) 909-6000 Hamilton, Bermuda HM 12 3441 (441) 295-5688 (312) 782-0600 ---------------- Approximate date of commencement of the proposed sale to the public: From time to time after this Registration Statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
Proposed maximum Amount aggregate Amount of Title of each class of securities to be offering registration to be registered (1) registered (1) price (2) fee - -------------------------------------------------------------------------------------------------- Mutual Risk Management Ltd. Senior Notes............ - -------------------------------------------------------------------------------------------------- Mutual Group Ltd. Senior Notes...................... - -------------------------------------------------------------------------------------------------- Mutual Risk Management Ltd. Junior Subordinated Notes.............................................. - -------------------------------------------------------------------------------------------------- Mutual Group Ltd. Junior Subordinated Notes......... - -------------------------------------------------------------------------------------------------- MRM Capital Trust I Preferred Securities............ - -------------------------------------------------------------------------------------------------- MRM Capital Trust II Preferred Securities........... - -------------------------------------------------------------------------------------------------- MRM Capital Trust III Preferred Securities.......... - -------------------------------------------------------------------------------------------------- Mutual Risk Management Ltd. Guarantee of Mutual Group Ltd. Senior Notes (3).......................................... - -------------------------------------------------------------------------------------------------- Mutual Risk Management Ltd. Guarantee of Mutual Group Ltd. Junior Subordinated Notes (3)........... - -------------------------------------------------------------------------------------------------- Mutual Risk Management Ltd. Guarantees of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III Preferred Securities (4)......... - -------------------------------------------------------------------------------------------------- Mutual Group Ltd. Guarantees of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III Preferred Securities (4)........................... - -------------------------------------------------------------------------------------------------- Mutual Risk Management Ltd. Guarantees of Mutual Group Ltd. Guarantees of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III Preferred Securities (3)........................... - -------------------------------------------------------------------------------------------------- Total............................................... $500,000,000 $500,000,000 $132,000(5)
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) An indeterminate principal amount of senior or junior subordinated notes of Mutual Risk Management Ltd. and senior or junior subordinated notes of Mutual Group Ltd. and an indeterminate number of preferred securities of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III as may from time to time be issued at indeterminate prices, with an aggregate offering price not to exceed $500,000,000. Junior subordinated notes may be issued and sold to MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III in which event the junior subordinated notes may later be distributed to the holders of preferred securities. (2) Estimated solely for the purpose of calculating the registration fee, which is calculated in accordance with Rule 457(o) of the rules and regulations under the Securities Act of 1933. Rule 457(o) permits the registration fee to be calculated on the basis of the maximum offering price of all of the securities listed and, therefore, the table does not specify by each class information as to the amount to be registered, the proposed maximum offering price per unit or the proposed maximum aggregate offering price. (3) Pursuant to Rule 457(n) of the rules and regulations under the Securities Act of 1933, no separate consideration will be received for the guarantees. (4) Includes the rights of holders of the preferred securities under the applicable guarantees of preferred securities, the obligations of Mutual Group Ltd. under the applicable trust agreement of each of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III and the obligations of Mutual Risk Management Ltd. or Mutual Group Ltd. under the indenture for the junior subordinated notes and any related supplemental indenture, all of which are described in this Registration Statement. No separate consideration will be received for any of such guarantees or obligations. (5) Previously paid. ---------------- The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a) may determine. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +The information in this preliminary prospectus is not complete and may be + +changed. These securities may not be sold until the registration statement + +filed with the Securities and Exchange Commission is effective. This + +preliminary prospectus is not an offer to sell nor does it seek an offer to + +buy these securities in any jurisdiction where the offer or sale is not + +permitted. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Subject to Completion, Dated May 23, 2000. PROSPECTUS $500,000,000 MUTUAL RISK MANAGEMENT LTD. SENIOR NOTES JUNIOR SUBORDINATED NOTES MUTUAL GROUP LTD. SENIOR NOTES JUNIOR SUBORDINATED NOTES Guaranteed by Mutual Risk Management Ltd. MRM CAPITAL TRUST I MRM CAPITAL TRUST II MRM CAPITAL TRUST III PREFERRED SECURITIES Guaranteed by Mutual Risk Management Ltd. ----------- We may offer and sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $500,000,000. This prospectus provides you with a general description of the securities that we may offer. Each time we offer securities, we will provide a prospectus supplement that will accompany this prospectus. This prospectus may not be used to sell these securities unless accompanied by a prospectus supplement. The prospectus supplement will contain specific information about the terms of the securities being offered at that time. You should read both this prospectus and any prospectus supplement, including the documents we have referred to under the heading "Where You Can Find More Information," to make your investment decision. Before investing in our securities, you should review the section of this prospectus called "Risk Factors" beginning on page 5. If we decide to list any of these securities on a national securities exchange upon issuance, the applicable supplement to this prospectus will identify the exchange and the date when we expect trading to begin. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. We may offer these securities through underwriters or agents or directly to institutional investors. The applicable supplement to this prospectus will provide the specific terms of the plan of distribution. ABOUT THIS PROSPECTUS This prospectus is part of a "shelf" registration statement that we filed with the SEC. By using this shelf registration statement, we may sell up to $500,000,000 of any combination of the securities described in this prospectus from time to time and in one or more offerings. This prospectus only provides you with a general description of the securities that we may offer. Each time we sell securities, we will provide a supplement to this prospectus that contains specific information about the terms of the securities. Before purchasing any securities, you should carefully read both this prospectus and any supplement, together with the additional information described under the heading "Where You Can Find More Information." MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III, each of which is referred to in this prospectus as a trust and all of which are collectively referred to as the trusts, have no independent function other than to issue securities and to purchase junior subordinated notes. Mutual Group Ltd., referred to in this prospectus as Mutual Group, is a wholly-owned subsidiary of Mutual Risk Management Ltd., referred to in this prospectus as MRM. This prospectus does not contain separate financial statements for Mutual Group or the trusts. MRM files consolidated financial information with the SEC that includes condensed consolidating information regarding Mutual Group and will include other financial information regarding the trusts. You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement. "Incorporate by reference" means that we can disclose important information to you by referring you to another document filed separately with the SEC. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and any supplement to this prospectus is current only as of the dates on their covers. Our business, financial condition, results of operations and prospects may have changed since that date. CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS This prospectus, any prospectus supplement and the information incorporated by reference in them may contain forward-looking statements within the meaning of the federal securities laws. MRM intends these forward-looking statements to be covered by the safe harbor provisions for forward-looking statements in these sections. In some cases, you can identify these statements by our use of forward-looking words such as "may," "will," "should," "anticipate," "estimate," "expect," "plan," "believe," "predict," "potential" and "intend." You should be aware that these statements and any other forward-looking statements in these documents only reflect our expectations and are not guarantees of performance. These statements involve risks, uncertainties and assumptions. Actual events or results may differ materially from our expectations. Important factors that could cause our actual results to be materially different from our expectations include those discussed in any of these documents under the caption "Risk Factors." The safe harbor provisions for forward-looking statements only apply to companies that have previously offered securities to the public. Because Mutual Group's offer of the senior notes and junior subordinated notes and each trust's offer of the preferred securities constitutes Mutual Group's and each trust's initial public offering of securities, the safe harbor provisions of the federal securities laws do not apply to Mutual Group or the trusts. We undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise. 2 MUTUAL RISK MANAGEMENT LTD. We provide risk management services to clients in the United States, Canada and Europe that seek alternatives to traditional commercial insurance for risk exposures. In addition, we provide financial services to offshore mutual funds and other companies. We are a Bermuda-based insurance holding company that was incorporated in 1977. We primarily focus on the "alternative market," which involves clients self-insuring a significant amount of their loss exposure and transferring only the unpredictable excess risk to insurers. Although revenue earned from premiums is substantial, our principal source of profits is from fees received for the various insurance and other services provided to clients in connection with our programs. Income from fees is derived from four distinct business segments: Program Business--The largest of our business segments. In this segment, we replace traditional insurers as the conduit between producers of specialty books of business and reinsurers wishing to write that business. We provide a range of services for a fee and the underwriting profit is shared between the producer and the reinsurers. Corporate Risk Management--Our original business segment. Corporate Risk Management involves providing services to businesses and associations seeking to insure a portion of their risk in a loss sensitive alternative market structure. We earn our fees by designing and implementing risk financing and loss control programs for medium-size and large companies that seek to insure a portion of their insurable risk. Specialty Brokerage--Our Specialty Brokerage segment specializes in placing reinsurance for captive insurance companies, placing coverage with excess liability and corporate officers' and directors' liability carriers and placing reinsurance in connection with our Program and Corporate Risk Management businesses. Financial Services--Our Financial Services segment started in 1996 with the acquisition of The Hemisphere Group Limited. The Financial Services segment provides administrative services to offshore mutual funds and other companies and offers a proprietary family of mutual funds as well as asset accumulation life insurance products for the high net worth market. The structure of our programs places most of the underwriting risk with the client or our reinsurers. For regulatory and other reasons, however, we are required to assume a limited amount of risk. We seek to limit our risk to the minimum level feasible. This approach to risk distinguishes us from typical property/casualty companies that assume significant levels of underwriting risk as part of their businesses. We do not seek to earn income from underwriting risk, but rather from fees for services provided. MRM's principal executive offices are located at 44 Church Street, Hamilton HM 12 Bermuda and its telephone number is (441) 295-5688. MUTUAL GROUP LTD. Mutual Group is a holding company for our U.S. operations. Its principal operating subsidiaries are Legion Insurance Company, Legion Indemnity Company and Villanova Insurance Company. Mutual Group was incorporated in 1979. Its principal executive offices are located at One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103 and its telephone number is (215) 963-1600. 3 THE TRUSTS Mutual Group created each trust as a statutory Delaware business trust pursuant to a trust agreement. Mutual Group will enter into an amended and restated trust agreement for each trust, which will state the terms and conditions for the trust to issue and sell its preferred securities and common securities. Each trust exists solely to: . issue and sell to the public preferred securities, representing undivided beneficial interests in the assets of the trust; . issue and sell to Mutual Group common securities, representing undivided beneficial interests in the assets of the applicable trust; . use the gross proceeds from the sale of its preferred and common securities to purchase a series of junior subordinated notes; . distribute the cash payments it receives from the junior subordinated notes it owns to the holders of the preferred and common securities; and . engage in other activities that are necessary or incidental to these purposes. Mutual Group will purchase all of the common securities of each trust. The common securities will represent an aggregate liquidation amount equal to at least 3% of each trust's total capitalization. The preferred securities will represent the remaining approximately 97% of each trust's total capitalization. The common securities will have terms substantially identical to, and will rank equal in priority of payment with, the preferred securities. Payments will be made on both the common securities and the preferred securities when payments of interest are made on the junior subordinated notes, upon redemption of the junior subordinated notes or in some circumstances upon liquidation of the trust. However, if a default on the payments on the related junior subordinated notes occurs, then cash distributions and redemption, liquidation and other amounts payable on the common securities will be subordinate in priority of payment to the amounts payable on the preferred securities. Each of the trusts is a legally separate entity and the assets of one are not available to satisfy the obligations of any of the others. The preferred securities will be guaranteed by MRM as described later in this prospectus. We have appointed five trustees to conduct each trust's business and affairs: . The Chase Manhattan Bank, which will act as the property trustee; . Chase Manhattan Bank Delaware, which will act as the Delaware trustee; and . Three Mutual Group officers, who will act as the administrative trustees. Mutual Group and MRM will pay all fees and expenses related to each trust and the offering of the preferred securities and will pay all ongoing costs, expenses and liabilities of each trust, except the trusts' obligations under the preferred and common securities. The trusts will not have separate financial statements. The statements would not be material to holders of the preferred securities because the trusts will not have any independent operations and exist solely for the reasons summarized above. The principal offices of each trust will be located at One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, and the telephone number of each trust will be (215) 963-1600. 4 RISK FACTORS You should carefully consider the following risk factors, in addition to the other information provided in this prospectus and the accompanying prospectus supplement, before you purchase any securities. New insurance legislation in some states has increased competition, which has reduced our fee revenues and made sales and renewals more difficult. Beginning in 1993, legislative reforms designed to reduce the cost of workers' compensation insurance in some important workers' compensation markets caused competition to increase significantly. This heightened level of competition has persisted. Increased competition has lowered the premium rates that we may charge, which has reduced our fee revenue. Increased competition also has made sales and renewals of our programs more difficult. Workers' compensation reform, to the extent it reduces premiums and introduces relative stability in the traditional workers' compensation market, may reduce the appeal of alternative market products such as those offered by us. If we are unable to purchase reinsurance and transfer risk to reinsurers, our net income would be reduced or we could incur a loss. A significant feature of our risk management programs is the utilization of reinsurance to transfer all or a portion of risk not retained by the insured. The availability and cost of reinsurance is subject to market conditions, which are outside of our control. As a result, we may not be able to successfully purchase reinsurance and transfer risk through reinsurance arrangements. A lack of available reinsurance would adversely affect the marketing of our programs and/or force us to retain all or a part of the risk that cannot be reinsured. If we were required to retain these risks and ultimately pay claims with respect to these risks, our net income would be reduced or we could incur a loss. In addition, we are subject to credit risk with respect to our reinsurers because the transfer of risk to a reinsurer does not relieve us of our liability to the insured. The failure of a reinsurer to honor its obligations would reduce our net income or could cause us to incur a loss. If the issuers of letters of credit and clients fail to honor their obligations, our net income would be reduced or we could incur a loss. Each of our clients chooses a level of risk retention, which is reinsured either by one of our foreign reinsurance subsidiaries or by the client's captive insurance company. This retention is generally also supported by letters of credit. In addition, we rely extensively on letters of credit issued or confirmed by a bank in order to secure a portion of the client's obligation to reimburse us for losses on a program. The failure of a bank to honor its letter of credit or the inability of a client to honor its uncollateralized reimbursement obligation would reduce our net income or could cause us to incur a loss. If tax laws prevent our IPC Program participants from deducting premiums paid to us, we would be unable to competitively market this program. One of our major products is the Insurance Profit Center Program, referred to in this prospectus as the IPC Program. The IPC Program, frequently referred to as a "rent-a-captive," was designed to provide clients some of the benefits available through captive insurance companies without the administrative cost and capital commitment necessary to establish and operate a captive insurance company. The tax treatment of this program is not clear and varies significantly with the circumstances of each IPC Program participant. However, some participants deduct the premiums paid to us for federal income tax purposes. A determination that a significant portion of the IPC Program participants are not entitled to deduct the premiums paid to us without a similar determination as to competing products would adversely affect the marketability of the IPC Program. 5 If our loss reserves are inadequate to meet our actual losses, our net income would be reduced or we could incur a loss. We are required to maintain reserves to cover our estimated ultimate liability losses and loss adjustment expenses for both reported and unreported claims incurred. These reserves are only estimates of what we think the settlement and administration of claims will cost based on facts and circumstances then known to us. Because of the uncertainties that surround estimating loss reserves and loss adjustment expenses, we cannot be certain that ultimate losses will not exceed these estimates of loss and loss adjustment reserves. If our reserves are insufficient to cover our actual losses and loss adjustment expenses, we would have to increase our reserves and our net income would be reduced or we could incur a loss. Insurance laws and regulations restrict our ability to operate. We are subject to extensive regulation under state and foreign insurance laws. These laws limit the amount of dividends that can be paid by our operating subsidiaries, impose restrictions on the amount and type of investments that they can hold, prescribe solvency standards that must be met and maintained by them and require them to maintain reserves. These laws also require disclosure of material transactions by MRM and require prior approval of certain "extraordinary" transactions. These "extraordinary" transactions include declaring dividends that exceed statutory maximums from operating subsidiaries to MRM or purchases of an operating subsidiary's capital stock. These laws also generally require approval of changes of control. Our failure to comply with these laws could subject us to fines and penalties and restrict us from conducting business. The application of these laws could affect our liquidity and ability to pay distributions and make payments on our debt securities and could restrict our ability to expand our business operations through acquisitions involving our insurance subsidiaries. Our holding company structure could prevent us from paying distributions and making payments on our debt securities. MRM is a holding company with no assets other than the stock of Mutual Group and other holding companies. Mutual Group is a holding company with no assets other than the stock of its operating subsidiaries. Our ability to meet our obligations on our securities will be dependent on the earnings and cash flows of our subsidiaries and the ability of the subsidiaries to pay dividends or to advance or repay funds to us. Payment of dividends and advances and repayments from our operating subsidiaries are regulated by state and foreign insurance laws and regulatory restrictions, including minimum solvency and liquidity thresholds. Accordingly, our operating subsidiaries may not be able to pay dividends or advance or repay funds to us in the future, which could prevent us from paying distributions and making payments on our debt securities. Our ability to generate the cash needed to pay distributions and make payments on our debt securities depends on many factors beyond our control. Our ability to pay distributions and make payments on our debt securities will depend on our ability to generate cash and to secure financing in the future. This ability is subject to general economic, financial, competitive, regulatory and other factors beyond our control. If our business does not generate sufficient cash flow from operations, and sufficient future borrowings are not available to us, we may not be able to pay distributions and make payments on our debt securities. Our investment objectives may not be realized. The success of our investment objectives is affected by general economic conditions that are outside of our control. General economic conditions can adversely affect the markets for interest-rate-sensitive securities, including the extent and timing of investor participation in those markets, the level and volatility of interest rates and, consequently, the value of fixed income securities. We may not be able to realize our investment objectives, which could reduce our net income or cause us to incur a loss. 6 Our industry is highly competitive and we may not be able to compete successfully in the future. Our industry is highly competitive and has experienced severe price competition over the last several years. We compete in the United States and international markets with domestic and international insurance companies. Some of these competitors have greater financial resources than we do, have been operating for longer than we have and have established long-term and continuing business relationships throughout the industry, which can be a significant competitive advantage. In addition, we expect to face further competition in the future. We may not be able to compete successfully in the future. We are dependent on our key personnel. Our success has been, and will continue to be, dependent on our ability to retain the services of our existing key executive officers and to attract and retain additional qualified personnel in the future. The loss of the services of any of our key executive officers or the inability to hire and retain other highly qualified personnel in the future could adversely affect our ability to conduct our business. You may not be able to recover damages from MRM and some of its directors, officers and experts named in this prospectus if you sue them. MRM is organized under the laws of Bermuda. Some of its directors and officers, as well as some of the experts named in this prospectus, may reside outside the United States. A substantial portion of the assets of MRM and its directors and officers are or may be located in jurisdictions outside the United States. You may not be able to effect service of process within the United States on directors and officers of MRM and those experts who reside outside the United States. You also may not be able to recover against them or MRM on judgments of U.S. courts or to obtain original judgments against them or MRM in Bermuda courts, including judgments predicated upon civil liability provisions of the U.S. federal securities laws. If U.S. tax law changes, our net income may be reduced. Some members of Congress have recently expressed concern over a competitive advantage that foreign-controlled insurers and reinsurers may have over U.S.- controlled insurers and reinsurers due to the purchase of reinsurance by U.S. insurers from affiliates operating in some foreign jurisdictions, including Bermuda. Legislation has been proposed that would increase the U.S. tax burden on some of these transactions. We do not know whether this legislation will ever be enacted into law. If it were enacted, the U.S. tax burden on some business ceded from our licensed U.S. insurance subsidiaries, including Legion Insurance Company, Legion Indemnity Ltd. and Villanova Insurance Company, to some offshore reinsurers could be increased. This could reduce our net income. 7 USE OF PROCEEDS We may sell all or a portion of the $500,000,000 of securities described in this prospectus. Unless stated otherwise in the applicable prospectus supplement, the net proceeds from the sale of the securities offered by each trust will be used by the trust to purchase a series of junior subordinated notes. Unless stated otherwise in the applicable prospectus supplement, MRM and Mutual Group will use the net proceeds for general corporate purposes. RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth the ratio of earnings to fixed charges for MRM for each of the periods indicated:
Year Ended December 31, ------------------------ 1999 1998 1997 1996 1995 ---- ---- ---- ---- ---- Ratio of Earnings to Fixed Charges(1).................. 6.6 9.6 8.4 7.1 13.9
- -------- (1) For purposes of computing the consolidated ratio of earnings to fixed charges, "earnings" represents income before income taxes, minority interest, extraordinary items and fixed charges, and "fixed charges" includes gross interest expense, the proportion deemed representative of the interest factor of rent expense and preferred share dividend requirements of consolidated subsidiary companies. ACCOUNTING TREATMENT Each trust will be treated as a wholly-owned subsidiary of MRM for financial reporting purposes. Accordingly, each trust's financial statements will be included in the consolidated financial statements of MRM. The preferred securities of each trust will be presented as a separate line item in the consolidated statements of financial position of MRM under the caption "Minority Interest--Company Obligated Mandatorily Redeemable Preferred Securities of Subsidiary Trust Holding Solely Junior Subordinated Notes of the Company" and appropriate disclosures about the preferred securities will be included in the notes to the consolidated financial statements. Specifically, MRM will record distributions payable on the preferred securities as minority interest in the consolidated statements of operations of MRM, include in a footnote to its financial statements disclosure that the sole assets of each trust are the junior subordinated notes and specify the principal amount, interest rate and maturity date of the junior subordinated notes held. The Financial Accounting Standards Board is in the process of drafting a proposed exposure draft on liabilities and equity. The proposed exposure draft, if issued, could alter the accounting treatment described above by requiring the preferred securities of each trust to be classified as debt on the consolidated statements of financial position of MRM and the related distributions payable as a component of interest expense in the consolidated statements of operations of MRM. 8 DESCRIPTION OF THE SENIOR NOTES AND THE MRM SENIOR NOTE GUARANTEES The senior notes of MRM will be issued pursuant to a senior indenture, as supplemented from time to time, between MRM and The Chase Manhattan Bank, as the senior indenture trustee. The senior notes of Mutual Group will be issued pursuant to a senior indenture, as supplemented from time to time, among Mutual Group, MRM, as guarantor, and The Chase Manhattan Bank, as senior indenture trustee. We have filed the base senior indentures as exhibits to the registration statement of which this prospectus is a part. You also may request a copy of the senior indentures from the senior indenture trustee at its corporate trust office in New York, New York. Each senior indenture will be qualified under the Trust Indenture Act of 1939. The terms of each series of senior notes will include those stated in the senior indenture for that series and those made part of the senior indenture by reference to the Trust Indenture Act. MRM and Mutual Group, each referred to as the issuing company, may each issue series of senior notes from time to time by entering into supplemental indentures with the senior indenture trustee or pursuant to resolutions of its board of directors or a duly authorized committee of its board. Any supplemental indenture or resolutions of either its board of directors or a duly authorized committee of its board will be executed at the time the issuing company issues any senior notes and will be filed with the SEC on Form 8-K or by a post-effective amendment to the registration statement of which this prospectus is a part. General The base senior indentures do not limit the aggregate principal amount of senior notes that the issuing company may issue. The senior notes of a series need not be issued at the same time, bear interest at the same rate or mature on the same date. The applicable prospectus supplement and the applicable supplemental indenture or resolutions for a particular series of senior notes will set forth the following terms of that series: . the title of the series; . any limit on the aggregate principal amount of the senior notes of the series; . the date or dates on which the principal of any of the senior notes of the series will be payable or the method for determining the date or dates; . whether the issuing company may shorten or extend the date on which the principal of any senior notes of the series is payable and, if so, the terms and conditions of any extension; . the rate or rates at which any of the senior notes of the series will bear interest, if any, or the method for determining the rate or rates, and the date or dates from which any interest will accrue; . the interest payment dates on which any interest will be payable and the regular record date, if any, for any interest payable on any interest payment date; . whether the senior notes will be secured or unsecured; . the place or places where payments on any of the senior notes of the series will be payable, if other than the principal corporate trust office of the senior indenture trustee; . the issuing company's obligation, if any, to redeem or purchase the senior notes of the series pursuant to any sinking fund, amortization or analogous provision and the terms and conditions on which any of the senior notes may be redeemed or purchased pursuant to any obligation; . the terms and conditions, if any, on which the senior notes of the series may be redeemed at the issuing company's option or at the option of the holder; . any index or formula for determining the amount of principal or any premium or interest on any of the senior notes of the series and the manner of determining those amounts; . the currency, currencies or currency units in which payments on any of the senior notes of the series will be payable, if other than U.S. dollars, and the manner of determining the equivalent of those amounts in U.S. dollars for any purpose; 9 . if the payments on the senior notes of the series are payable, at the issuing company's option or the option of the holder of the senior notes, in one or more currencies or currency units other than those in which the senior notes are stated to be payable, the currency, currencies or currency units in which the payments on the senior notes may be payable and the terms and conditions of the option; . the portion of the principal amount of any of the senior notes of the series that will be payable upon declaration of acceleration of maturity, if other than the entire principal amount; . whether any of the terms of the senior indenture described below under "--Defeasance and Covenant Defeasance" will not apply to any of the senior notes of the series; . whether any of the senior notes of the series will be issuable as global securities and, if so, the depositary and any provisions for the transfer or exchange of any such global securities, if different from those described below under "--Global Securities"; . any addition to, deletion from or change in events of default or covenants with respect to any of the senior notes of the series and any change in the right of the senior indenture trustee or the holders of the senior notes to accelerate the maturity of the senior notes; and . any other terms of the senior notes of the series. Unless the applicable prospectus supplement states otherwise, the issuing company will issue the senior notes only in fully registered form, without coupons, and there will be no service charge for any registration of transfer or exchange of the senior notes. The issuing company may, however, require payment to cover any tax or other governmental charge payable in connection with the registration of transfer or exchange. The issuing company may offer and sell the senior notes at a substantial discount below their principal amount and the senior indenture does not provide any limit on the amount by which the issuing company may discount the senior notes. The applicable prospectus supplement will describe the special United States federal income tax and other considerations, if any, applicable to any discounted senior notes. In addition, the applicable prospectus supplement may describe certain special United States federal income tax or other considerations, if any, applicable to any senior notes that are denominated in a currency or currency unit other than U.S. dollars. Ranking Unless the applicable prospectus supplement provides otherwise, the senior notes will be unsecured indebtedness of the issuing company. The senior notes will be equal in right of payment with any other senior indebtedness of the issuing company and senior in right of payment to any subordinated indebtedness of the issuing company. The senior notes will be effectively subordinated to any secured indebtedness of the issuing company to the extent of the value of the assets securing the secured indebtedness. As a result, in the event of the issuing company's bankruptcy, liquidation or reorganization or upon acceleration of the senior notes due to an event of default, the issuing company's assets will be available to pay its obligations on the senior notes only after all secured indebtedness has been paid in full in cash or other payment satisfactory to the holders of the secured indebtedness has been made. There may not be sufficient assets remaining to pay amounts due on any or all of the senior notes then outstanding. The senior notes will also effectively be subordinated to the indebtedness and other liabilities of the issuing company's subsidiaries. The senior indentures do not prohibit or limit the incurrence of secured or senior indebtedness or the incurrence of other indebtedness and liabilities by the issuing company or its subsidiaries other than as described below. The incurrence of additional senior indebtedness and other liabilities by the issuing company or its subsidiaries could adversely affect the issuing company's ability to pay the obligations on the senior notes. MRM Senior Note Guarantee Unless provided otherwise in a prospectus supplement, MRM will fully and unconditionally guarantee all obligations with respect to each series of senior notes issued by Mutual Group. Unless provided otherwise in a 10 prospectus supplement, each MRM senior note guarantee will be unsecured indebtedness of MRM and will be equal in right of payment to all of MRM's existing and future senior indebtedness and senior in right of payment to any subordinated indebtedness of MRM. Each MRM senior note guarantee will be effectively subordinated to any secured indebtedness of MRM to the extent of the value of the assets securing the secured indebtedness. Each MRM senior note guarantee will also rank equally with any other MRM senior note guarantee of any series of senior notes issued by Mutual Group. As a result, in the event of MRM's bankruptcy, liquidation or reorganization or upon acceleration of any series of senior notes due to an event of default, MRM's assets will be available to pay MRM's obligations on an MRM senior note guarantee only after all secured indebtedness of MRM has been paid in full in cash or other payment satisfactory to the holders of the secured indebtedness of MRM has been made. There may not be sufficient assets remaining to pay amounts due on any or all of the MRM senior note guarantees. Each MRM senior note guarantee will also be effectively subordinated to the indebtedness and other liabilities of MRM's subsidiaries. Each MRM senior note guarantee does not prohibit or limit the incurrence of secured or additional senior indebtedness or the incurrence of other indebtedness and liabilities by MRM or its subsidiaries. The incurrence of additional secured and senior indebtedness and other liabilities by MRM or its subsidiaries could adversely affect MRM's ability to pay its obligations on an MRM senior note guarantee. Each MRM senior note guarantee will constitute a guarantee of payment and not of collection. This means that the holder of the guaranteed security may sue MRM to enforce its rights under the MRM senior note guarantee without first suing any other person or entity. Additional Amounts MRM will make all payments on any series of senior notes issued by MRM and all payments under each MRM senior note guarantee without withholding or deduction for any taxes, fees, duties, assessments or governmental charges imposed or levied by Bermuda or any other jurisdiction in which MRM or any successor is organized or resident for tax purposes or any political subdivision or taxing authority of Bermuda or any of those other jurisdictions. If any withholding or deduction is required by law, MRM will pay to the holder of the senior notes additional amounts as may be necessary so that every net payment made to the holder after the withholding or deduction will not be less than the amount provided for in the applicable senior note and the senior indenture. MRM will not be required to pay any additional amounts as a result of: . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the senior note was a resident or national of or had other specified connections with the relevant taxing jurisdiction or presented the senior note for payment in the relevant taxing jurisdiction unless it could not have been presented elsewhere; . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the senior note presented the senior note for payment more than 30 days after it was due and payable; . any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the senior note failed to comply, within 90 days, with any reasonable request by MRM addressed to the holder or beneficial owner relating to the provision of information or the making of a declaration required by the taxing jurisdiction as a precondition to exemption from all or part of the tax, fee, duty, assessment or governmental charge. In addition, MRM will not be required to pay additional amounts with respect to any payment to any holder of a senior note where the beneficial owner of the senior note is a fiduciary or partnership to the extent that such payment would be required to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or a partner of such partnership that would not have been entitled to such additional amounts if it had been the holder of the senior note. Global Securities Some or all of the senior notes of a series may be represented in whole or in part by one or more global securities deposited with or on behalf of one or more depositaries. The applicable prospectus supplement will describe the terms of any depositary arrangement. Unless the applicable prospectus supplement states otherwise, the following provisions will apply to all depositary arrangements for any senior notes represented by global securities. 11 Senior notes represented by a global security deposited with or on behalf of a depositary will be registered in the name of that depositary or its nominee. Upon the issuance of a global security in registered form, the depositary for the global security will credit, on its book-entry registration and transfer system, the respective principal amounts of the senior notes represented by the global security to the accounts of institutions that have accounts with the depositary or its nominee. These institutions are generally brokers, dealers, banks and other financial institutions and are often referred to as participants. The accounts to be credited will be designated by the underwriters or agents of the senior notes or by the issuing company if the senior notes are offered and sold directly by the issuing company. Ownership of beneficial interests in the global securities will be limited to participants or persons that may hold interests through participants. Any person who holds a brokerage account with a participant may purchase the senior notes through the participant. Ownership of beneficial interests by participants in the global securities will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary or its nominee for the global security. Ownership of beneficial interests in global securities by persons that hold through participants will be effected only through records maintained by the applicable participant. Some insurance companies and other institutions are required by law to hold their investment securities in definitive form, so an investor may not be able to sell its senior notes to those entities. So long as the depositary for a global security or its nominee is the registered owner of the global security, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the senior notes represented by the global security for all purposes under the senior indenture. Except as set forth below, owners of beneficial interests in the global security will not be entitled to have the senior notes represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of the senior notes in definitive form and will not be considered the owners or holders of the senior notes under the senior indenture. Payments on senior notes registered in the name of or held by a depositary or its nominee will be made in immediately available funds to the depositary or its nominee, as the case may be, as the registered owner or the holder of the global security representing the senior notes. None of the issuing company, MRM, as guarantor, if applicable, the senior indenture trustee, any paying agent or the registrar and transfer agent for the senior notes will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in a global security for the senior notes or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. We expect that a depositary for the senior notes of a series, upon receipt of any payments in respect of a global security, will immediately credit participants' accounts with payment in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in the global security held through the participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in "street name," and will be the responsibility of each participant. So long as the depositary for a global security or its nominee is the registered owner of the global security, the depositary or its nominee, as the case may be, will be entitled to direct the actions of the senior indenture trustee upon an event of default. However, we expect that a depositary for the senior notes of a series, upon receiving notice of an event of default, will immediately solicit the participants regarding any action to be taken. We also expect that the participants will act in accordance with standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in "street name," and will, in turn, solicit the owners of the beneficial interests regarding any action to be taken upon any event of default. A global security may not be transferred, in whole or in part, except by the depositary for the global security 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 nominee to a successor depositary or a nominee of the successor 12 depositary. If a depositary for the senior notes of a series is at any time unwilling or unable to continue as depositary and a qualified successor depositary is not appointed by the issuing company within 90 days or if at any time the depositary ceases to be a clearing agency registered under the Exchange Act when the depositary is required to be registered to act as the depositary and no qualified successor is appointed by the issuing company within 90 days or if an event of default has occurred and is continuing, then the issuing company will issue the senior notes in definitive registered form in exchange for the global security or global securities representing the senior notes. In addition, the issuing company may, at any time, determine not to have any senior notes represented by one or more global securities and, in that event, will issue the senior notes in definitive registered form in exchange for the global securities representing the senior notes. In any of these instances, an owner of a beneficial interest in a global security will be entitled to physical delivery in definitive form of the senior notes represented by the global security equal in principal amount to its beneficial interest and to have the senior notes registered in its name. Covenants in the Senior Indenture The issuing company and, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM will not sell, transfer or otherwise dispose of any shares of capital stock of a significant subsidiary, and the issuing company and, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM will not permit any significant subsidiary to sell, transfer or otherwise dispose of any shares of capital stock of any other significant subsidiary, unless the entire capital stock of the significant subsidiary at the time owned by MRM or Mutual Group, as the case may be, and its significant subsidiaries is disposed of at the same time for consideration consisting of cash or other property, which, in the opinion of MRM's or Mutual Group's board of directors, as the case may be, determined in good faith, is at least equal to the fair market value of the significant subsidiary and the transaction is in compliance with the merger provisions described below. The issuing company and, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM will not, and the issuing company and, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM will not permit any significant subsidiary at any time directly or indirectly to, create, assume, incur or otherwise permit to exist any indebtedness secured by a pledge, lien or other encumbrance on any shares of the capital stock of any significant subsidiary, other than existing indebtedness that is so secured and any renewals, extensions or refundings of that indebtedness, without making effective provision whereby the senior notes then outstanding and any related guarantee, and, if MRM or Mutual Group, as the case may be, elects, any other indebtedness ranking equally with the senior notes and any related guarantee, will be secured equally and ratably with or prior to that other indebtedness so long as that other indebtedness is secured. "Significant subsidiary" means any subsidiary of MRM or Mutual Group, as the case may be, the assets of which constitute at least 10% of MRM's or Mutual Group's, as the case may be, consolidated total assets or the income before income taxes and minority interest of which accounts for at least 10% of MRM's or Mutual Group's, as the case may be, consolidated income before income taxes and minority interest. Events of Default The following will be events of default under the senior indenture with respect to the senior notes of any series unless the particular event of default is not applicable to the particular series or is modified or deleted in a supplemental indenture as stated in the applicable prospectus supplement: . the issuing company fails to pay principal of or any premium on any senior note of that series, or any additional amounts related to principal or premium, on its due date; . the issuing company fails to pay any interest on any senior note of that series, or any additional amounts related to interest, within 30 days from its due date; . the issuing company fails to make any sinking fund payment on its due date; 13 . the issuing company or, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM fails to perform any of its covenants in the senior indenture, excluding a covenant not applicable to the affected series, for 30 days after the senior indenture trustee or the holders of at least 25% in principal amount of the outstanding senior notes of that series give the issuing company and MRM, as guarantor, if applicable, written notice of the default and require that the issuing company and MRM, as guarantor, if applicable, remedy the breach. However, the 30-day period may be extended by either the senior indenture trustee or the senior indenture trustee and the holders of at least the same principal amount of the outstanding senior notes of that series that had given notice of the default; . the issuing company or, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM defaults under any (1) indebtedness for any money borrowed, including any other series of debt securities, (2) mortgage, indenture or other instrument under which there may be issued or may be secured or evidenced any indebtedness for money borrowed or (3) guarantee of payment for money borrowed, and any default consists of a payment default at the stated maturity of the indebtedness, after giving effect to any applicable grace period, or results in the indebtedness becoming due or being declared due prior to its stated maturity; provided, that a default shall exist under this clause only if the aggregate principal amount outstanding under all of the indebtedness that is so in default or that has become due or been declared due prior to its stated maturity, as the case may be, exceeds $40,000,000 and the default has not been cured, the indebtedness or accelerated indebtedness has not been discharged or the acceleration of the indebtedness has not been rescinded or annulled, in each case, within 10 days after the senior indenture trustee or the holders of at least 25% in principal amount of the senior notes give the issuing company and MRM, as guarantor, if applicable, written notice of the default and require that the issuing company and MRM, as guarantor, if applicable, remedy the breach; . the issuing company or, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM fails within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $40,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; . the issuing company or, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM files for bankruptcy or other events of bankruptcy, insolvency or reorganization occur; . in the case of senior notes issued by Mutual Group and guaranteed by MRM, the guarantee ceases to be in full force and effect; and . any other event of default specified in the applicable prospectus supplement occurs. If the issuing company or, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM files for bankruptcy or other events of bankruptcy, insolvency or reorganization occur, all unpaid principal and accrued interest, premium and additional amounts on the senior notes will automatically be immediately due and payable. If any other event of default with respect to the senior notes of a series occurs and is continuing, then the senior indenture trustee or the holders of not less than 25% in principal amount of the outstanding senior notes of that series may, by notice to the issuing company and, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM and to the senior indenture trustee if given by the holders, declare to be immediately due and payable all unpaid principal and accrued interest, premium and additional amounts on all senior notes of that series. At any time after a declaration of acceleration has been made with respect to the senior notes of a series and before a judgment or decree for payment of the money due has been obtained, the holders of not less than a majority in principal amount of the outstanding senior notes may rescind any declaration of acceleration with respect to the senior notes and its consequences if: . the issuing company or, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM deposits with the senior indenture trustee funds sufficient to pay all overdue principal of and any premium, interest and additional amounts due on the senior notes, any amounts due to the senior note trustee and, to the extent that payment of the interest is lawful, interest on the overdue interest and additional amounts; and 14 . all existing events of default with respect to the senior notes have been cured or waived except non-payment of principal on the senior notes that has become due solely because of the acceleration. The holders of not less than a majority in principal amount of the outstanding senior notes of any series have the right to direct the time, method and place of conducting any proceedings for any remedy available to the senior indenture trustee or to direct the exercise of any trust or power conferred on the senior indenture trustee with respect to the senior notes of that series. No holder of a senior note of any series will have any right to institute a proceeding with respect to the senior indenture for the appointment of a receiver or for any remedy under the senior indenture unless: . that holder has previously given the senior indenture trustee written notice that an event of default with respect to the senior notes of that series has occurred and is continuing; . the holders of not less than a majority in principal amount of the outstanding senior notes of that series have made written request to institute the proceeding; . the holder or holders have offered reasonable indemnity to the senior indenture trustee; . the senior indenture trustee has failed to institute the proceeding for 60 days after receipt of the notice and offer of indemnity; and . the senior indenture trustee has not received from the holders of not less than a majority in principal amount of the outstanding senior notes of that series a direction inconsistent with the written request. Notwithstanding the foregoing, the holder of any senior note will have an absolute and unconditional right to receive payment of the principal of and any premium, interest and additional amounts on that senior note on its maturity date, or, in the case of redemption, the date of redemption, and to institute suit for the enforcement of any payment against the issuing company and MRM, as guarantor, if applicable. Notice of Default If an event occurs which is or would become an event of default with respect to any series of the senior notes, and the senior indenture trustee knows of the event, the senior indenture trustee shall mail to the holders of the affected senior notes a notice of the default within 90 days, unless the default has been cured or waived by the holders of the affected senior notes. However, except in the case of a default in the payment of any amounts due on senior notes of any series, the senior indenture trustee may withhold the notice if and so long as the directors and/or responsible officers of the senior indenture trustee determine in good faith that withholding the notice is in the interest of the holders of the affected senior notes. The issuing company and, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM are required to furnish annually to the senior indenture trustee an officers' certificate to the effect that, to the best knowledge of the officers providing the certificate, the issuing company or MRM, as guarantor, if applicable, is not in default under the senior indenture or, if there has been a default, specifying the default and its status. Consolidation, Merger, Conveyance or Transfer The Mutual Group senior indenture provides that Mutual Group may consolidate or merge with or into another entity, or convey, transfer or lease its properties and assets substantially as an entirety to any entity or permit an entity to convey, transfer or lease its properties and assets substantially as an entirety to it; provided, that: . the successor, if any, is a corporation organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia and expressly assumes by supplemental indenture all of Mutual Group's obligations under the Mutual Group senior indenture and the related senior notes; 15 . immediately after giving effect to the transaction, no event of default, or event which after notice or lapse of time or both would become an event of default, will have occurred and be continuing; and . Mutual Group delivers an officers' certificate and an opinion of counsel to the senior indenture trustee, each stating that the transaction complies with the Mutual Group senior indenture and all conditions precedent in the Mutual Group senior indenture relating to the consolidation, merger, conveyance or transfer have been complied with. Upon the assumption by the successor of Mutual Group's obligations under the senior indenture and the senior notes, the successor will succeed to and be substituted for Mutual Group under the Mutual Group senior indenture, and Mutual Group will be relieved of all of its obligations under the Mutual Group senior indenture and the related senior notes, except as otherwise specified in any applicable prospectus supplement. Each senior indenture provides that MRM may consolidate or merge with or into another entity, or convey, transfer or lease its properties and assets substantially as an entirety to any entity or permit an entity to convey, transfer or lease its properties and assets substantially as an entirety to it; provided, that: . the successor, if any, is a corporation existing under the laws of the United States of America, any State of the United States, the District of Columbia or Bermuda and expressly assumes by supplemental indenture all of MRM's obligations under the applicable senior indenture and the related senior notes or the MRM senior note guarantee, as the case may be; . immediately after giving effect to the transaction, no event of default, or event which after notice or lapse of time or both would become an event of default, will have occurred and be continuing; and . MRM delivers an officers' certificate and an opinion of counsel to the senior indenture trustee, each stating that the transaction complies with the applicable senior indenture and all conditions precedent in the applicable senior indenture relating to the consolidation, merger, conveyance or transfer have been complied with. Upon the assumption by the successor of MRM's obligations under the applicable senior indenture, the senior notes and the MRM senior note guarantees, if applicable, the successor will succeed to and be substituted for MRM under the applicable senior indenture, and MRM will be relieved of all of its obligations under the senior indenture and the related senior notes and the MRM senior note guarantees, if applicable, except as otherwise specified in the applicable prospectus supplement. Registration and Transfer If the senior notes of a series are to be redeemed, the issuing company will not be required to: . issue, register the transfer of or exchange any senior notes of that series during the 15 days immediately preceding the date notice is mailed identifying the senior notes that are called for redemption; or . register the transfer of or exchange any senior note selected for redemption, in whole or in part, except for the unredeemed portion of a senior note being redeemed in part. Denominations The senior notes will be issuable in denominations of $1,000 and any integral multiples of $1,000, without coupons, unless the applicable prospectus supplement states otherwise. Payment and Paying Agent Principal of the senior notes will be paid only against surrender of the senior notes as specified in the senior indenture. Unless the applicable prospectus supplement states otherwise, interest on the senior notes will be payable, at the issuing company's option, (1) by check mailed to the address of the person entitled to the interest as the address appears in the security register for the senior notes or (2) by wire transfer to an account at a banking institution in the United States that the person entitled to the interest designates in writing to the senior indenture trustee at least 10 business days prior to the date of payment. 16 Unless the applicable prospectus supplement states otherwise, the senior indenture trustee will act as paying agent for the senior notes, and the principal corporate trust office of the senior indenture trustee will serve as the office through which the paying agent acts. The issuing company may designate additional paying agents, rescind the designation of any paying agents and/or approve a change in the office through which any paying agent acts. Modification of the Senior Indentures The issuing company, MRM, as guarantor, if applicable, and the senior indenture trustee may amend or modify the senior indentures with the consent of the holders of at least a majority in aggregate principal amount of the outstanding senior notes of each series of the senior notes affected by the amendment or modification voting as a class. No amendment or modification may, however, without the consent of the holder of each outstanding senior note affected by the amendment or modification: . change the stated maturity of the principal of, or any premium, interest or additional amounts on, any senior note; . reduce the amount due and payable upon acceleration of the maturity of the senior note; . reduce the principal amount of, the rate of interest on or any premium payable upon the redemption of any senior note, modify the calculation of the rate of interest or change the date on which any senior note may be redeemed; . change MRM's obligations to pay any additional amounts; . change the place of payment or currency of any payment on any senior note; . impair the right to institute suit for the enforcement of any payment on any senior note on or after the stated maturity of the payment or date of redemption; . reduce the percentage in principal amount of the senior notes of any series, the consent of whose holders is required to amend or modify the senior indenture, to waive compliance with specific provisions of the senior indenture or to waive specific defaults; . modify the provisions of the MRM senior note guarantee; or . modify any of the above provisions. In addition, the issuing company, MRM, as guarantor, if applicable, and the senior indenture trustee may, without the consent of any of the holders of the senior notes, execute supplemental indentures to: . create new series of senior notes; . cure any ambiguity, correct or supplement any provision which may be inconsistent with any other provision or make provisions not inconsistent with any other provisions with respect to matters or questions arising under the applicable senior indenture, in each case to the extent that the amendment does not adversely affect the interests of any holder of the senior notes in any material respect; and . make other changes that do not adversely affect the interests of the holders of the senior notes in any material respect; as well as for various other purposes. Waiver of Covenants and Defaults The holders of not less than a majority in aggregate principal amount of the outstanding senior notes of any series may waive, for that series, the issuing company's and/or, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM's compliance with any restrictive covenants described in this prospectus or in any prospectus supplement or included in any supplemental indenture. The holders of not less than a majority in aggregate principal amount of the outstanding senior notes of any series with respect to 17 which a default has occurred and is continuing may waive that default for that series, other than a default in any payment on any senior note of that series or a default with respect to a covenant or provision that cannot be amended or modified without the consent of the holder of each outstanding senior note affected. Defeasance and Covenant Defeasance The senior indentures provide, unless the terms of the particular series of senior notes provide otherwise, that: . the issuing company may be discharged from its obligations with respect to any senior notes or series of senior notes, and, in the case of senior notes issued by Mutual Group and guaranteed by MRM, MRM may be discharged from its obligations with respect to the related MRM senior note guarantee, each of which we refer to as "defeasance;" and/or . the issuing company and MRM, as guarantor, if applicable, may be released from their obligations under any restrictive covenants described in any prospectus supplement or included in any supplemental indenture with respect to any senior notes or series of senior notes and the related MRM senior note guarantee, which we refer to as "covenant defeasance." The senior indentures permit defeasance with respect to any senior notes of a series even if a prior covenant defeasance has occurred with respect to the senior notes of that series. Following a defeasance, payment of the senior notes defeased and the MRM senior note guarantee, if applicable, may not be accelerated because of an event of default. Following a covenant defeasance, payment of the senior notes and the MRM senior note guarantee, if applicable, may not be accelerated by reference to the covenants affected by the covenant defeasance. However, if an acceleration were to occur, the realizable value at the acceleration date of the money and government obligations in the defeasance trust could be less than the amounts then due on the senior notes, since the required deposit in the defeasance trust would be based upon scheduled cash flows rather than market value, which would vary depending upon interest rates and other factors. Upon a defeasance, the following rights and obligations will continue: (1) the rights of the holders of the senior notes of any series to receive from the defeasance trust any amounts due on the senior notes when payments are due; (2) the issuing company's obligations regarding the registration, transfer and exchange of the senior notes of any series; (3) the obligation of the issuing company and MRM, as guarantor, if applicable, to maintain an office or agency in each place of payment; and (4) the survival of the senior indenture trustee's rights, powers, trusts, duties and immunities under the senior indenture. In connection with any defeasance or covenant defeasance, the issuing company or MRM, as guarantor, if applicable, must irrevocably deposit with the senior indenture trustee, in trust, money and/or government obligations which, through the scheduled payment of principal and interest on those obligations, would provide sufficient moneys to pay all amounts due on the senior notes on the maturity dates or upon redemption. The issuing company must also deliver to the trustee an opinion of counsel to the effect that the holders of the senior notes will not recognize income, gain or loss for United States federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, must refer to and be based upon a letter ruling of the Internal Revenue Service received by the issuing company, a Revenue Ruling published by the Internal Revenue Service or a change in applicable United States federal income tax law occurring after the date of the senior indenture. Information Concerning the Senior Indenture Trustee If an event of default shall occur and be continuing, the senior indenture trustee shall exercise its rights and powers under the senior indenture in the same manner and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the same circumstances in the conduct of his or her 18 own affairs. Before proceeding to exercise any right or power under the senior indenture at the direction of the holders, the senior indenture trustee will be entitled to receive from the holders reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in complying with any direction of the holders. The Chase Manhattan Bank, which is the senior indenture trustee under each senior indenture, also serves as the subordinated indenture trustee under each subordinated indenture described below and as property trustee and guarantee trustee with respect to the preferred securities issued by each trust. Chase Manhattan Bank Delaware, an affiliate of The Chase Manhattan Bank, serves as the Delaware trustee for each trust. Governing Law The senior indentures, the senior notes and the MRM senior note guarantees will be governed by the laws of the State of New York, without regard to the conflict of law provisions thereof. 19 DESCRIPTION OF THE JUNIOR SUBORDINATED NOTES AND THE MRM JUNIOR SUBORDINATED NOTE GUARANTEES The junior subordinated notes of MRM will be issued pursuant to a subordinated indenture, as supplemented from time to time, between MRM and The Chase Manhattan Bank, as the subordinated indenture trustee. The junior subordinated notes of Mutual Group will be issued pursuant to a subordinated indenture, as supplemented from time to time, among Mutual Group, MRM, as guarantor, and The Chase Manhattan Bank, as subordinated indenture trustee. We have filed the base subordinated indentures as exhibits to the registration statement of which this prospectus is a part. You also may request a copy of the subordinated indentures from the subordinated indenture trustee at its corporate trust office in New York, New York. Each subordinated indenture will be qualified under the Trust Indenture Act of 1939. The terms of each series of junior subordinated notes will include those stated in the applicable subordinated indenture and those made part of the applicable subordinated indenture by reference to the Trust Indenture Act. MRM and Mutual Group, each referred to as the issuing company, may each issue series of junior subordinated notes from time to time by entering into supplemental indentures with the subordinated indenture trustee or pursuant to resolutions of its board of directors or a duly authorized committee of its board. Any supplemental indenture or resolutions of either its board of directors or a duly authorized committee of its board will be executed at the time the issuing company issues any junior subordinated notes and will be filed with the SEC on Form 8-K or by a post-effective amendment to the registration statement of which this prospectus is a part. General The base subordinated indentures do not limit the aggregate principal amount of junior subordinated notes that the issuing company may issue. The junior subordinated notes of a series need not be issued at the same time, bear interest at the same rate or mature on the same date. The issuing company will issue the junior subordinated notes under the applicable subordinated indenture as one or more series of unsecured junior debt securities. The junior subordinated notes will be unsecured and subordinated in right of payment to all of the issuing company's existing and future senior indebtedness and will rank equal in priority with all of the issuing company's other unsecured and subordinated indebtedness. The applicable prospectus supplement and the applicable supplemental indenture for a particular series of junior subordinated notes will set forth the following terms of that series: . the title of the series; . any limit on the aggregate principal amount of the junior subordinated notes of the series; . the date or dates on which the principal of the junior subordinated notes of the series will be payable or the method for determining the date or dates; . whether the issuing company may shorten or extend the date on which the principal of any junior subordinated notes of the series is payable and, if so, the terms and conditions of any extension; . the rate or rates at which the junior subordinated notes of the series will bear interest, if any, or the method for determining the rate or rates, and the date or dates from which any interest will accrue; . the interest payment dates on which any interest will be payable and the regular record date, if any, for any interest payable on any interest payment date; . whether any of the terms of the applicable subordinated indenture described below under "--Option to Extend Interest Payment Date" will not apply to the junior subordinated notes of the series; . the place or places where payments on the junior subordinated notes of the series will be payable, if other than the principal corporate trust office of the subordinated indenture trustee; 20 . the issuing company's obligation, if any, to redeem or purchase the junior subordinated notes of the series pursuant to any sinking fund, amortization or analogous provision and the terms and conditions on which the junior subordinated notes may be redeemed or purchased pursuant to any obligation; . the terms and conditions, if any, on which the junior subordinated notes of the series may be redeemed at the issuing company's option or at the option of the holder; . any index or formula for determining the amount of principal or any premium or interest on the junior subordinated notes of the series and the manner of determining those amounts; . the currency, currencies or currency units in which payments on the junior subordinated notes of the series will be payable, if other than U.S. dollars, and the manner of determining the equivalent of those amounts in U.S. dollars for any purpose; . if the payments on the junior subordinated notes of the series are payable at the issuing company's option or the option of the holders of the junior subordinated notes, in one or more currencies or currency units other than those in which the junior subordinated notes are stated to be payable, the currency, currencies or currency units in which the payments on the junior subordinated notes may be payable and the terms and conditions of the option; . the portion of the principal amount of the junior subordinated notes of the series that will be payable upon declaration of acceleration of maturity, if other than the entire principal amount; . whether any of the terms of the applicable subordinated indenture described below under "--Defeasance and Covenant Defeasance" will not apply to the junior subordinated notes of the series; . whether any of the junior subordinated notes of the series will be issuable as global securities and, if so, the depositary and any provisions for the transfer or exchange of the global securities, if different from those described below under "--Global Securities"; . any addition to, deletion from or change in events of default or covenants with respect to the junior subordinated notes of the series and any change in the right of the subordinated indenture trustee or the holders of the junior subordinated notes to accelerate the maturity of the junior subordinated notes; and . any other terms of the junior subordinated notes of the series. Unless the applicable prospectus supplement states otherwise, the issuing company will issue the junior subordinated notes only in fully registered form, without coupons, and there will be no service charge for any registration of transfer or exchange of the junior subordinated notes. The issuing company may, however, require payment to cover any tax or other governmental charge payable in connection with the registration of transfer or exchange. The issuing company may offer and sell the junior subordinated notes at a substantial discount below their principal amount and the subordinated indentures do not provide any limit on the amount by which the issuing company may discount the junior subordinated notes. The applicable prospectus supplement will describe the special United States federal income tax and other considerations, if any, applicable to any discounted junior subordinated notes. In addition, the applicable prospectus supplement may describe certain special United States federal income tax or other considerations, if any, applicable to any junior subordinated notes that are denominated in a currency or currency unit other than U.S. dollars. The interest rate and interest and other payment dates of each series of junior subordinated notes issued to a trust will correspond to those of the applicable preferred securities of the trust. MRM Junior Subordinated Note Guarantees Unless provided otherwise in a prospectus supplement, MRM will fully and unconditionally guarantee all obligations with respect to each series of junior subordinated notes issued by Mutual Group. Unless provided otherwise in a prospectus supplement, each MRM junior subordinated note guarantee will be unsecured indebtedness of MRM and will be subordinated in right of payment to all of MRM's existing and future senior 21 indebtedness. Each MRM junior subordinated note guarantee will be effectively subordinated to any secured indebtedness of MRM to the extent of the value of the assets securing the secured indebtedness. Each MRM junior subordinated note guarantee will also rank equally with any other MRM junior subordinated note guarantee of any series of junior subordinated notes issued by Mutual Group. As a result, in the event of MRM's bankruptcy, liquidation or reorganization or upon acceleration of any series of junior subordinated notes due to an event of default, MRM's assets will be available to pay MRM's obligations on an MRM junior subordinated note guarantee only after all secured and senior indebtedness of MRM has been paid in full in cash or other payment satisfactory to the holders of the secured and senior indebtedness of MRM has been made. There may not be sufficient assets remaining to pay amounts due on any or all of the MRM junior subordinated note guarantees. Each MRM junior subordinated note guarantee will also be effectively subordinated to the indebtedness and other liabilities of MRM's subsidiaries. Each MRM junior subordinated note guarantee does not prohibit or limit the incurrence of secured or senior indebtedness or the incurrence of other indebtedness and liabilities by MRM or its subsidiaries. The incurrence of additional secured and senior indebtedness and other liabilities by MRM or its subsidiaries could adversely affect MRM's ability to pay its obligations on an MRM junior subordinated note guarantee. Each MRM junior subordinated note guarantee will constitute a guarantee of payment and not of collection. This means that the holder of the guaranteed security may sue MRM to enforce its rights under the MRM junior subordinated note guarantee without first suing any other person or entity. Additional Amounts MRM will make all payments on any series of junior subordinated notes issued by MRM and all payments under each MRM junior subordinated note guarantee without withholding or deduction for any taxes, fees, duties, assessments or governmental charges imposed or levied by Bermuda or any other jurisdiction in which MRM or any successor is organized or resident for tax purposes or any political subdivision or taxing authority of Bermuda or any of those other jurisdictions. If any withholding or deduction is required by law, MRM will pay to the holder of the junior subordinated notes additional amounts as may be necessary so that every net payment made to the holder after the withholding or deduction will not be less than the amount provided for in the applicable junior subordinated note and the applicable subordinated indenture. MRM will not be required to pay any additional amounts as a result of: . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the junior subordinated note, other than a trust, was a resident or national of or had other specified connections with the relevant taxing jurisdiction or presented the junior subordinated note for payment in the relevant taxing jurisdiction unless it could not have been presented elsewhere; . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the junior subordinated note, other than a trust, presented the junior subordinated note for payment more than 30 days after it was due and payable; . any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the junior subordinated note, other than a trust, failed to comply, within 90 days, with any reasonable request by MRM addressed to the holder or beneficial owner relating to the provision of information or the making of a declaration required by the taxing jurisdiction as a precondition to exemption from all or part of the tax, fee, duty, assessment or governmental charge. In addition, MRM will not be required to pay additional amounts with respect to any payment to any holder of a junior subordinated note where the beneficial owner of the junior subordinated note, other than a trust, is a fiduciary or partnership to the extent that such payment would be required to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or a partner of such partnership that would not have been entitled to such additional amounts if it had been the holder of the junior subordinated note. Subordination Each series of the junior subordinated notes will be unsecured indebtedness of the issuing company and will be subordinated in right of payment to all of the issuing company's existing and future senior indebtedness. 22 The junior subordinated notes will be effectively subordinated to any secured indebtedness of the issuing company to the extent of the value of the assets securing the secured indebtedness. As a result, in the event of the issuing company's bankruptcy, liquidation or reorganization or upon acceleration of the junior subordinated notes due to an event of default, the issuing company's assets will be available to pay its obligations on the junior subordinated notes only after all senior indebtedness has been paid in full in cash or other payment satisfactory to the holders of the senior indebtedness has been made. In addition, any assets securing secured indebtedness will be available to pay the issuing company's obligations under the junior subordinated notes only after all secured indebtedness has been paid in full in cash or other payment satisfactory to the holders of the secured indebtedness has been made. There may not be sufficient assets remaining to pay amounts due on any or all of the junior subordinated notes then outstanding. The junior subordinated notes will also be effectively subordinated to the indebtedness and other liabilities of the issuing company's subsidiaries. No payment with respect to the junior subordinated notes of any series may be made if any senior indebtedness of the issuing company is not paid when due and any applicable grace period with respect to the default has ended and the default has not been cured or waived or ceased to exist. If the maturity of any senior indebtedness has been accelerated because of a default, payments on the junior subordinated notes may not be made until the accelerated indebtedness has been paid in full or the acceleration rescinded. Except as otherwise provided in the applicable prospectus supplement, the subordinated indentures do not prohibit or limit the incurrence of secured or senior indebtedness or the incurrence of other indebtedness and liabilities by the issuing company or its subsidiaries. The incurrence of additional secured and senior indebtedness and other liabilities by the issuing company or its subsidiaries could adversely affect the issuing company's ability to pay its obligations on the junior subordinated notes. The term "senior indebtedness" is defined in each subordinated indenture to mean, with respect to any issuing company of junior subordinated notes, the principal of, and any premium and interest on and any other payment in respect of, indebtedness due pursuant to any of the following, whether outstanding at the date of execution of each subordinated indenture or incurred after the date of execution: . all indebtedness of the applicable issuing company for money borrowed or evidenced by debt securities, acquisition obligations, reimbursement obligations, deferred purchase price obligations, capital lease obligations and derivative products; . all indebtedness of others of the kinds described in the preceding clause and all dividends of other persons guaranteed in any manner by the applicable issuing company; and . all renewals, extensions or refundings of indebtedness of the kinds described in either of the preceding clauses; unless the instrument creating or evidencing the same or pursuant to which the same is outstanding provides that the indebtedness, renewal, extension or refunding is not superior in right of payment to or is equal in right of payment with or subordinated to each series of the junior subordinated notes. Any senior indebtedness will continue to be senior indebtedness and be entitled to the benefits of the subordination provisions in each subordinated indenture irrespective of any amendment, modification or waiver of any term of the senior indebtedness. Global Securities Some or all of the junior subordinated notes of a series may be represented in whole or in part by one or more global securities deposited with or on behalf of one or more depositaries. The applicable prospectus supplement will describe the terms of any depositary arrangement. Unless the applicable prospectus supplement states otherwise, the following provisions will apply to all depositary arrangements for any junior subordinated notes represented by global securities. Each series of the junior subordinated notes that are to be represented by a global security deposited with or on behalf of a depositary will be represented by a global security registered in the name of that depositary or its nominee. Upon the issuance of a global security in registered form, the depositary for the global security 23 will credit, on its book-entry registration and transfer system, the respective principal amount of the applicable junior subordinated notes represented by the global security to the accounts of institutions that have accounts with the depositary or its nominee. These institutions are generally brokers, dealers, banks and other financial institutions, and are referred to as participants. The accounts to be credited will be designated by the underwriters or agents of the applicable junior subordinated notes or by the issuing company if the applicable junior subordinated notes are offered and sold directly by the issuing company. Ownership of beneficial interests in the global securities will be limited to participants or persons that may hold interests through participants. Any person who holds a brokerage account with a participant may purchase the junior subordinated notes through the participant. Ownership of beneficial interests by participants in the global securities will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary or its nominee for the global security. Ownership of beneficial interests in global securities by persons that hold through participants will be effected only through records maintained by the applicable participant. Some insurance companies and other institutions are required by law to hold their investment securities in definitive form, so an investor may not be able to sell its junior subordinated notes to those entities. So long as the depositary for a global security or its nominee is the registered owner of the global security, the depositary or nominee, as the case may be, will be considered the sole owner or holder of the junior subordinated notes represented by the global security for all purposes under the subordinated indenture. Except as set forth below, owners of beneficial interests in the global security will not be entitled to have the junior subordinated notes represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of the junior subordinated notes in definitive form and will not be considered the owners or holders of the junior subordinated notes under the subordinated indenture. Payments on junior subordinated notes registered in the name of or held by a depositary or its nominee will be made in immediately available funds to the depositary or its nominee, as the case may be, as the registered owner or the holder of the global security representing the junior subordinated notes. None of the issuing company, MRM, as guarantor, if applicable, the subordinated indenture trustee, any paying agent or the registrar and transfer agent for the applicable series of junior subordinated notes will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in a global security for the applicable series of junior subordinated notes or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. We expect that a depositary for each series of junior subordinated notes, upon receipt of any payments in respect of a global security, will immediately credit participants' accounts with payment in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in the global security held through the participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in "street name," and will be the responsibility of each participant. So long as the depositary for a global security or its nominee is the registered owner of the global security, the depositary or its nominee, as the case may be, will be entitled to direct the actions of the subordinated indenture trustee upon an event of default. However, we expect that a depositary for each series of the junior subordinated notes upon receiving notice of an event of default, will immediately solicit the participants regarding any action to be taken. We also expect that the participants will act in accordance with standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in "street name," and will, in turn, solicit the owners of the beneficial interests regarding any action to be taken upon any event of default. A global security may not be transferred, in whole or in part, except by the depositary for the global security 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 nominee to a successor depositary or a nominee of the successor 24 depositary. If a depositary for the junior subordinated notes of a series is at any time unwilling or unable to continue as depositary and a qualified successor depositary is not appointed by the applicable issuing company within 90 days or if at any time the depositary ceases to be a clearing agency registered under the Exchange Act when the depositary is required to be registered to act as the depositary and no qualified successor is appointed by the applicable issuing company within 90 days or an event of default has occurred and is continuing, then the applicable issuing company will issue the junior subordinated notes in definitive registered form in exchange for the global security or global securities representing the applicable junior subordinated notes. In addition, the issuing company may, at any time, determine not to have any junior subordinated notes represented by one or more global securities and, in that event, will issue the applicable junior subordinated notes in definitive registered form in exchange for the global securities representing the applicable junior subordinated notes. In any of these instances, an owner of a beneficial interest in a global security will be entitled to physical delivery in definitive form of the applicable junior subordinated notes represented by the global security equal in principal amount to its beneficial interest and to have the applicable junior subordinated notes registered in its name. Option to Extend Interest Payment Date If provided in the related prospectus supplement, the issuing company will have the right at any time and from time to time during the term of any series of junior subordinated notes issued to a trust to defer payment of interest for the number of consecutive interest payment periods as may be specified in the related prospectus supplement, subject to the terms, conditions and covenants, if any, specified in the prospectus supplement. No interest deferral period, however, may extend beyond the stated maturity of the series of junior subordinated notes. The United States federal income tax consequences and special considerations related to a deferral will be described in the related prospectus supplement. Events of Default The following will be events of default under each subordinated indenture with respect to each series of junior subordinated notes unless the particular event of default is not applicable to the particular series of junior subordinated notes or unless the particular event of default is deleted or modified in a supplemental indenture as stated in the applicable prospectus supplement: . the issuing company fails to pay principal of or any premium on any junior subordinated note of that series, or any additional amounts related to principal or premium, on its due date; . the issuing company fails to pay any interest on any junior subordinated note of that series, or any additional amounts related to interest, within 30 days from its due date, after taking into account any permitted deferral of interest payments by the issuing company under the terms of the junior subordinated notes; . the issuing company fails to make any sinking fund payment on its due date; . the issuing company or, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM fails to perform any of its covenants in the subordinated indenture, excluding a covenant not applicable to the affected series, for 30 days after the subordinated indenture trustee or the holders of at least 25% in principal amount of the outstanding junior subordinated notes of that series give the issuing company and MRM, as guarantor, if applicable, written notice of the default and require that the issuing company or MRM, as guarantor, if applicable, remedy the breach. However, the 30-day period may be extended by either the subordinated indenture trustee or the subordinated indenture trustee and the holders of at least the same principal amount of junior subordinated notes of that series that had given notice of default; . the issuing company or MRM, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, defaults under any (1) indebtedness for any money borrowed, including any other series of debt securities, (2) mortgage, indenture or other instrument under which there may be issued or 25 may be secured or evidenced any indebtedness for money borrowed or (3) guarantee of payment for money borrowed, and any default consists of a payment default at the stated maturity of the indebtedness, after giving effect to any applicable grace period, or results in the indebtedness becoming due or being declared due prior to its stated maturity; provided, that a default shall exist under this clause only if the aggregate principal amount outstanding under all of the indebtedness that is so in default or that has become due or been declared due prior to its stated maturity, as the case may be, exceeds $40,000,000 and the default has not been cured, the indebtedness or accelerated indebtedness has not been discharged or the acceleration of the indebtedness has not been rescinded or annulled, in each case, within 10 days after the subordinated indenture trustee or the holders of at least 25% in principal amount of the junior subordinated notes give the issuing company and MRM, as guarantor, if applicable, written notice of the default and require that the issuing company or MRM, as guarantor, if applicable, remedy the breach; . the issuing company or, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM fails within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $40,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; . the issuing company or, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM files for bankruptcy or other events of bankruptcy, insolvency or reorganization occur; . in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, the guarantee ceases to be in full force and effect; and . any other event of default specified in the applicable prospectus supplement occurs. If the issuing company or, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM files for bankruptcy or other events of bankruptcy, insolvency or reorganization occur, all unpaid principal and accrued interest, premium and additional amounts on the junior subordinated notes will automatically be immediately due and payable. If any other event of default with respect to the junior subordinated notes of a series occurs and is continuing, then the subordinated indenture trustee or the holders of not less than 25% in principal amount of the outstanding junior subordinated notes of that series may, by notice to the issuing company, and, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM and to the subordinated indenture trustee if given by the holders, declare to be immediately due and payable all unpaid principal and accrued interest, premium and additional amounts on all junior subordinated notes of that series. At any time after a declaration of acceleration has been made with respect to the junior subordinated notes of a series and before a judgment or decree for payment of the money due has been obtained, the holders of not less than a majority in principal amount of the outstanding junior subordinated notes may rescind any declaration of acceleration with respect to the junior subordinated notes and its consequences if: . the issuing company or, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM deposits with the subordinated indenture trustee funds sufficient to pay all overdue principal of and any premium, interest and additional amounts on the applicable junior subordinated notes, any other amounts due to the subordinated indenture trustee and, to the extent that payment of the interest is lawful, interest on the overdue interest and additional amounts; and . all existing events of default with respect to the applicable junior subordinated notes have been cured or waived except non-payment of principal on the junior subordinated notes that has become due solely because of the acceleration. The holders of not less than a majority in principal amount of the outstanding junior subordinated notes of any series have the right to direct the time, method and place of conducting any proceedings for any remedy available to the subordinated indenture trustee or to direct the exercise of any trust or power conferred on the subordinated indenture trustee with respect to the junior subordinated notes of that series. 26 No holder of a junior subordinated note of any series will have any right to institute a proceeding with respect to the applicable subordinated indenture or for any remedy under the applicable subordinated indenture unless: . that holder has previously given the subordinated indenture trustee written notice that an event of default with respect to the junior subordinated notes of that series has occurred and is continuing; . the holders of not less than a majority in principal amount of the outstanding junior subordinated notes of that series have made written request to institute the proceeding; . the holder or holders have offered reasonable indemnity to the subordinated indenture trustee; . the subordinated indenture trustee has failed to institute the proceeding for 60 days after receipt of the notice and offer of indemnity; and . the subordinated indenture trustee has not received from the holders of not less than a majority in principal amount of the outstanding junior subordinated notes of that series a direction inconsistent with the written request. Notwithstanding the foregoing, the holder of any junior subordinated note will have an absolute and unconditional right to receive payment of the principal of and any premium, interest and additional amounts on that junior subordinated note on its maturity date, or, in the case of redemption, the date of redemption, and to institute suit for the enforcement of any payment against the issuing company and MRM, as guarantor, if applicable. Notice of Default If an event occurs which is or would become an event of default with respect to any series of the junior subordinated notes, and the subordinated indenture trustee knows of the event, the subordinated indenture trustee shall mail to the holders of the affected junior subordinated notes a notice of the default within 90 days, unless the default has been cured or waived by the holders of the affected junior subordinated notes. However, except in the case of a default in the payment of any amounts due on junior subordinated notes of any series, the subordinated indenture trustee may withhold the notice if and so long as the directors and/or responsible officers of the subordinated indenture trustee determine in good faith that withholding the notice is in the interest of the holders of the affected junior subordinated notes. The issuing company and, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM are required to furnish annually to the subordinated indenture trustee an officers' certificate to the effect that, to the best knowledge of the officers providing the certificate, it is not in default under the applicable subordinated indenture or, if there has been a default, specifying the default and its status. Consolidation, Merger, Conveyance or Transfer The Mutual Group subordinated indenture provides that Mutual Group may consolidate or merge with or into another entity, or convey, transfer or lease its properties and assets substantially as an entirety to any entity or permit an entity to convey, transfer or lease its properties and assets substantially as an entirety to it; provided, that: . the successor, if any, is a corporation organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia and expressly assumes by supplemental indenture all of Mutual Group's obligations under the Mutual Group subordinated indenture and the related junior subordinated notes; . immediately after giving effect to the transaction, no event of default, or event which after notice or lapse of time or both would become an event of default, will have occurred and be continuing; and . Mutual Group delivers an officers' certificate and an opinion of counsel to the subordinated indenture trustee, each stating that the transaction complies with the Mutual Group subordinated indenture and all conditions precedent in the Mutual Group subordinated indenture relating to the consolidation, merger, conveyance or transfer have been complied with. 27 Upon the assumption by the successor of Mutual Group's obligations under the subordinated indenture and the junior subordinated notes, the successor will succeed to and be substituted for Mutual Group under the Mutual Group subordinated indenture, and Mutual Group will be relieved of all of its obligations under the Mutual Group subordinated indenture and the related junior subordinated notes, except as otherwise specified in any applicable prospectus supplement. Each subordinated indenture provides that MRM may consolidate or merge with or into another entity, or convey, transfer or lease its properties and assets substantially as an entirety to any entity or permit an entity to convey, transfer or lease its properties and assets substantially as an entirety to it; provided, that: . the successor, if any, is a corporation organized and existing under the laws of the United States of America, any State of the United States, the District of Columbia or Bermuda and expressly assumes by supplemental indenture all of MRM's obligations under the applicable subordinated indenture and the related junior subordinated notes or the MRM junior subordinated note guarantees, as the case may be; . immediately after giving effect to the transaction, no event of default, or event which after notice or lapse of time or both would become an event of default, will have occurred and be continuing; and . MRM delivers an officers' certificate and an opinion of counsel to the subordinated indenture trustee, each stating that the transaction complies with the applicable subordinated indenture and all conditions precedent in the applicable subordinated indenture relating to the consolidation, merger, conveyance or transfer have been complied with. Upon the assumption by the successor of MRM's obligations under the subordinated indenture, the junior subordinated notes and the MRM junior subordinated note guarantees, if applicable, the successor will succeed to and be substituted for MRM under the applicable subordinated indenture, and MRM will be relieved of all of its obligations under the applicable subordinated indenture, the related junior subordinated notes and the MRM junior subordinated note guarantees, if applicable, except as otherwise specified in any applicable prospectus supplement. Registration and Transfer If the junior subordinated notes of a series are to be redeemed, the issuing company will not be required to: . issue, register the transfer of or exchange any junior subordinated notes of that series during the 15 days immediately preceding the date notice is mailed identifying the junior subordinated notes that are called for redemption; or . register the transfer of or exchange any junior subordinated note selected for redemption, in whole or in part, except for the unredeemed portion of any junior subordinated note being redeemed in part. Denominations Each series of the junior subordinated notes will be issuable in denominations of $1,000 and any integral multiples of $1,000, without coupons, unless the applicable prospectus supplement states otherwise. Payment and Paying Agent Principal of each series of the junior subordinated notes will be paid only against surrender of the applicable junior subordinated notes as specified in the applicable subordinated indenture. Unless the applicable prospectus supplement states otherwise, interest on each series of the junior subordinated notes will be payable, at the issuing company's option, (1) by check mailed to the address of the person entitled to the interest as the address appears in the security register for the applicable junior subordinated notes or (2) by wire transfer to an account at a banking institution in the United States that the person entitled to the interest designates in writing to the subordinated indenture trustee at least 10 business days prior to the date of payment. 28 Unless the applicable prospectus supplement states otherwise, the subordinated indenture trustee will act as paying agent for each series of the junior subordinated notes, and the principal corporate trust office of the subordinated indenture trustee will serve as the office through which the paying agent acts. The issuing company may designate additional paying agents, rescind the designation of any paying agents and/or approve a change in the office through which any paying agent acts. All moneys that the issuing company has paid to a paying agent for payment of principal of or interest on each series of the junior subordinated notes that remain unclaimed at the end of two years after the principal or interest has become due and payable will be repaid to the issuing company at its request. Holders will thereafter look only to the issuing company for any payments. Modification of the Subordinated Indenture The issuing company, MRM, as guarantor, if applicable, and the subordinated indenture trustee may amend or modify the subordinated indenture with the consent of the holders of at least a majority in aggregate principal amount of the outstanding junior subordinated notes of each series of the junior subordinated notes affected by the amendment or modification voting as a class. No amendment or modification may, however, without the consent of the holder of each outstanding junior subordinated note affected by the amendment or modification: . change the stated maturity of the principal of, or any premium, interest or additional amounts on, any junior subordinated note; . reduce the amount due and payable upon acceleration of the maturity of the junior subordinated note; . reduce the principal amount of, the rate of interest on or any premium payable upon the redemption of any junior subordinated note, modify the calculation of the rate of interest or change the date on which any junior subordinated note may be redeemed; . change the place of payment or currency of any payment on any junior subordinated note; . change MRM's obligations to pay any additional amounts; . impair the right to institute suit for the enforcement of any payment on any junior subordinated note on or after the stated maturity of the payment or date of redemption; . alter the subordination provisions in a manner that would adversely affect the interests of any holder of the junior subordinated notes in any material respect; . reduce the percentage in principal amount of the junior subordinated notes of any series, the consent of whose holders is required to amend or modify the subordinated indenture, to waive compliance with specific provisions of the subordinated indenture or to waive specific defaults; . modify the provisions of the MRM junior subordinated note guarantee; or . modify any of the above provisions. In addition, the issuing company, MRM, as guarantor, if applicable, and the subordinated indenture trustee may execute supplemental indentures to: . create new series of junior subordinated notes; . cure any ambiguity, correct or supplement any provision which may be inconsistent with any other provision or make provisions not inconsistent with any other provisions with respect to matters on questions arising under the applicable subordinated indenture, in each case to the extent that the amendment does not adversely affect the interests of any holder of the junior subordinated notes in any material respect; and . make other changes that do not adversely affect the interests of the holders of the junior subordinated notes in any material respect; as well as for various other purposes. 29 In addition, the subordinated indentures may not be amended to alter the subordination of any junior subordinated notes without the written consent of each holder of senior indebtedness then outstanding that would be adversely affected by the alteration. Waiver of Covenants and Defaults The holders of not less than a majority in aggregate principal amount of the outstanding junior subordinated notes of any series may waive, for that series, the issuing company's and/or, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM's compliance with any restrictive covenants described in any prospectus supplement or included in any supplemental indenture. The holders of not less than a majority in aggregate principal amount of the outstanding junior subordinated notes of any series with respect to which a default has occurred and is continuing may waive that default for that series, other than a default in any payment on any junior subordinated note of that series or a default with respect to a covenant or provision that cannot be amended or modified without the consent of the holder of each outstanding junior subordinated note affected. Defeasance and Covenant Defeasance The subordinated indentures provide, unless the terms of the particular series of junior subordinated notes provide otherwise, that: . the issuing company may be discharged from its obligations with respect to any junior subordinated notes or series of junior subordinated notes and, in the case of junior subordinated notes issued by Mutual Group and guaranteed by MRM, MRM may be discharged from its obligations with respect to the related MRM junior subordinated note guarantee, each of which we refer to as "defeasance;" and/or . the issuing company and MRM, as guarantor, if applicable, may be released from their obligations under any restrictive covenants described in any prospectus supplement or included in any supplemental indenture with respect to any junior subordinated notes or series of junior subordinated notes and the related MRM junior subordinated note guarantee, which we refer to as "covenant defeasance." The subordinated indentures permit defeasance with respect to any junior subordinated notes of a series even if a prior covenant defeasance has occurred with respect to the junior subordinated notes of that series. Following a defeasance, payment of the junior subordinated notes defeased and the MRM junior subordinated note guarantee, if applicable, may not be accelerated because of an event of default. Following a covenant defeasance, payment of the junior subordinated notes defeased and the MRM junior subordinated note guarantee, if applicable, may not be accelerated by reference to the covenants affected by the covenant defeasance. However, if an acceleration were to occur, the realizable value at the acceleration date of the money and government obligations in the defeasance trust could be less than the amounts then due on the junior subordinated notes since the required deposit in the defeasance trust would be based upon scheduled cash flows rather than market value, which would vary depending upon interest rates and other factors. Upon a defeasance, the following rights and obligations will continue: (1) the rights of the holders of the junior subordinated notes of any series to receive from the defeasance trust payments due on the junior subordinated notes when payments are due, (2) the issuing company's obligations regarding the registration, transfer and exchange of the junior subordinated notes of any series, (3) the obligation of the issuing company and MRM, as guarantor, if applicable, to maintain an office or agency in each place of payment and (4) the survival of the subordinated indenture trustee's rights, powers, trusts, duties and immunities under the applicable subordinated indenture. In connection with any defeasance or covenant defeasance, the issuing company or MRM, as guarantor, if applicable, must irrevocably deposit with the subordinated indenture trustee, in trust, money and/or government obligations which, through the scheduled payment of principal and interest on those obligations, would provide sufficient moneys to pay all amount due on the junior subordinated notes on the maturity dates or upon redemption. The issuing company must also deliver to the trustee an opinion of counsel to the effect that the 30 holders of the junior subordinated notes will not recognize income, gain or loss for United States federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, must refer to and be based upon a letter ruling of the Internal Revenue Service received by the issuing company or MRM, as guarantor, a Revenue Ruling published by the Internal Revenue Service or a change in applicable United States federal income tax law occurring after the date of the subordinated indenture. Information Concerning the Subordinated Indenture Trustee In case an event of default shall occur and be continuing, the subordinated indenture trustee shall exercise its rights and powers under the applicable subordinated indenture in the same manner and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the same circumstances in the conduct of his or her own affairs. Before proceeding to exercise any right or power under the applicable subordinated indenture at the direction of the holders, the subordinated indenture trustee will be entitled to receive from the holders reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in complying with any direction of the holders. The Chase Manhattan Bank, which is the subordinated indenture trustee under each subordinated indenture, also serves as the senior indenture trustee under each senior indenture described above and as property trustee and guarantee trustee with respect to the preferred securities issued by each trust. Chase Manhattan Bank Delaware, an affiliate of The Chase Manhattan Bank, serves as the Delaware trustee for each trust. Governing Law The subordinated indentures, the junior subordinated notes and the MRM junior subordinated note guarantees will be governed by the laws of the State of New York, without regard to the conflict of laws provisions thereof. 31 DESCRIPTION OF THE PREFERRED SECURITIES The preferred securities of each trust will be issued pursuant to a trust agreement for that trust, as subsequently amended and restated, among Mutual Group, the issuer of the related junior subordinated notes, The Chase Manhattan Bank, as the property trustee, Chase Manhattan Bank Delaware, as the Delaware trustee, the three administrative trustees and the holders from time to time of the applicable trust's preferred and common securities. We have filed the trust agreements and forms of each amended and restated trust agreement as exhibits to the registration statement of which this prospectus is a part. You also may request a copy of the trust agreements from the property trustee at its corporate trust office in New York, New York. Each trust agreement will be qualified under the Trust Indenture Act of 1939. The terms of the preferred securities of a trust will include those stated in the applicable trust agreement and those made part of the trust agreement by reference to the Trust Indenture Act. The amended and restated trust agreement for a trust will be executed at the time the trust issues any preferred securities and will be filed with the SEC on Form 8-K or by a post-effective amendment to the registration statement of which this prospectus is a part. General The trust agreement for each trust authorizes the administrative trustees to issue on behalf of the trust preferred securities that have the terms described in this prospectus and in the applicable prospectus supplement. The preferred securities will represent undivided beneficial interests in the assets of the applicable trust. The proceeds from the sale of each trust's preferred and common securities will be used by the trust to purchase a series of junior subordinated notes issued by Mutual Group or MRM, as the case may be. The junior subordinated notes will be held in trust by the property trustee for the benefit of the holders of the preferred and common securities of the applicable trust. The terms of the preferred securities of each trust will mirror the terms of the junior subordinated notes held by the applicable trust. If interest payments on the junior subordinated notes held by the applicable trust are deferred as described above, distributions on the preferred securities will also be deferred. The assets of the trust available for distribution to the holders of its preferred securities generally will be limited to payments under the series of junior subordinated notes held by the trust and under the related MRM junior subordinated note guarantee, if applicable. Under the preferred securities guarantee for each trust, the issuing company will agree to make payments of distributions and payments on redemption or liquidation with respect to the trust's preferred securities, but only to the extent the trust has funds available to make those payments and has not made the payments. If Mutual Group issues junior subordinated notes to a trust, MRM will also guarantee Mutual Group's obligations under its preferred securities guarantee. See "Description of the Preferred Securities Guarantees and the MRM Trust Guarantees." The issuing company's obligations under the applicable preferred securities guarantee, trust agreement, subordinated indenture and related junior subordinated notes and, if applicable, MRM's obligations under the MRM junior subordinated note guarantee and the MRM trust guarantee will provide a full, irrevocable and unconditional guarantee by MRM of amounts due on the preferred securities issued by each trust. The prospectus supplement relating to the preferred securities of each trust will describe the specific terms of the preferred securities, including: . the name of the preferred securities; . the dollar amount and number of preferred securities issued; . the annual distribution rate, or method of determining the rate, of distributions on the preferred securities, and date or dates from which any distributions will accrue; . the payment date and the record date used to determine the holders who are to receive distributions on the preferred securities; . the right, if any, to defer distributions on the preferred securities upon extension of the interest payment periods of the related junior subordinated notes; 32 . the applicable trust's obligation, if any, to redeem or purchase the preferred securities and the terms and conditions on which the preferred securities may be redeemed or purchased pursuant to any obligation; . the terms and conditions, if any, on which the preferred securities may be redeemed at the applicable trust's option or at the option of the holders; . the terms and conditions, if any, upon which the related junior subordinated notes may be distributed to holders of the preferred securities; . the voting rights, if any, of the holders of the preferred securities; . whether the preferred securities are to be issued in book-entry form and represented by one or more global securities and, if so, the depository and any provisions for the transfer or exchange of the global securities, if different from those described below under "--Global Securities;" and . any other relevant rights, preferences, privileges, limitations or restrictions of the preferred securities. The prospectus supplement will describe various United States federal income tax considerations applicable to the purchase, holding and disposition of the series of preferred securities. Global Securities Some or all of the preferred securities of a series may be represented in whole or in part by one or more global securities deposited with or on behalf of one or more depositaries. The applicable prospectus supplement will describe the terms of any depositary arrangement. Unless the applicable prospectus supplement states otherwise, the following provisions will apply to all depositary arrangements for any preferred securities represented by global securities. Preferred securities represented by a global security deposited with or on behalf of a depositary will be registered in the name of that depositary or its nominee. Upon the issuance of a global security in registered form, the depositary for the global security will credit, on its book-entry registration and transfer system, the respective principal amounts of the preferred securities represented by the global security to the accounts of institutions that have accounts with the depositary or its nominee. These institutions are generally brokers, dealers, banks and other financial institutions and are often referred to as participants. The accounts to be credited will be designated by the underwriters or agents of the preferred securities or by the applicable trust, if the preferred securities are offered and sold directly by the trust. Ownership of beneficial interests in the global securities will be limited to participants or persons that may hold interests through participants. Any person who holds a brokerage account with a participant may purchase the preferred securities through the participant. Ownership of beneficial interests by participants in the global securities will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary or its nominee for the global security. Ownership of beneficial interests in global securities by persons that hold through participants will be effected only through records maintained by the applicable participant. Some insurance companies and other institutions are required by law to hold their investment securities in definitive form, so an investor may not be able to sell its preferred securities to those entities. So long as the depositary for a global security or its nominee is the registered owner of the global security, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the preferred securities represented by the global security for all purposes under the applicable trust agreement. Except as set forth below, owners of beneficial interests in the global security will not be entitled to have the preferred securities represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of the preferred securities in definitive form and will not be considered the owners or holders of the preferred securities under the applicable trust agreement. Payments on preferred securities registered in the name of or held by a depositary or its nominee will be made in immediately available funds to the depositary or its nominee, as the case may be, as the registered owner or the holder of the global security representing the preferred securities. None of MRM, Mutual Group, 33 the trusts, the property trustee, the Delaware trustee, any paying agent or the registrar and transfer agent for the preferred securities will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in a global security for the preferred securities or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. We expect that a depositary for the preferred securities of a series, upon receipt of any payments in respect of a global security, will immediately credit participants' accounts with payment in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in the global security held through the participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in "street name," and will be the responsibility of each participant. So long as the depositary for a global security or its nominee is the registered owner of the global security, the depositary or its nominee, as the case may be, will be entitled to direct the actions of the property trustee upon an event of default. However, we expect that a depositary for the preferred securities of a series, upon receiving notice of an event of default, will immediately solicit the participants regarding any action to be taken. We also expect that the participants will act in accordance with standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in "street name," and will, in turn, solicit the owners of the beneficial interests regarding any action to be taken upon any event of default. A global security may not be transferred, in whole or in part, except by the depositary for the global security, 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 nominee to a successor depositary or a nominee of the successor depositary. If a depositary for the preferred securities of a series is at any time unwilling or unable to continue as depositary and a qualified successor depositary is not appointed by the administrative trustees within 90 days or if at any time the depositary ceases to be a clearing agency registered under the Exchange Act when the depositary is required to be registered to act as the depositary and no qualified successor is appointed by the administrative trustees within 90 days or if an event of default has occurred and is continuing, then the applicable trust will issue the preferred securities in definitive registered form in exchange for the global security or global securities representing the preferred securities. In addition, the administrative trustees may, at any time, determine not to have any preferred securities represented by one or more global securities and, in that event, the applicable trust will issue the preferred securities in definitive registered form in exchange for the global securities representing the preferred securities. In any of these instances, an owner of a beneficial interest in a global security will be entitled to physical delivery in definitive form of the preferred securities represented by the global security equal in principal amount to its beneficial interest and to have the preferred securities registered in its name. Liquidation Distribution Upon Dissolution Unless otherwise specified in an applicable prospectus supplement, each trust agreement will provide that the trust will be dissolved: . upon the expiration of the term of the trust; . upon the bankruptcy, dissolution or liquidation of Mutual Group or MRM; . upon the direction of Mutual Group to the property trustee to dissolve the trust and distribute the related junior subordinated notes directly to the holders of the preferred and common securities of the trust; . upon the redemption of all of the common and preferred securities of the trust in connection with the redemption of all of the related junior subordinated notes; or . upon entry of a court order for the dissolution of the trust. Unless otherwise specified in an applicable prospectus supplement, in the event of a dissolution as described above other than in connection with redemption, after the trust satisfies all liabilities to its creditors 34 as provided by applicable law, each holder of the preferred or common securities of a trust will be entitled to receive: . the related junior subordinated notes in an aggregate principal amount equal to the aggregate liquidation amount of the preferred or common securities held by the holder; or . if any distribution of the related junior subordinated notes is determined by the property trustee not to be practical, cash equal to the aggregate liquidation amount of the preferred or common securities held by the holder, plus accumulated and unpaid distributions to the date of payment. If a trust cannot pay the full amount due on its preferred and common securities because insufficient assets are available for payment, then the amounts payable by the trust on its preferred and common securities will be paid on a pro rata basis. However, if an event of default under the subordinated indenture has occurred and is continuing with respect to any related junior subordinated notes, the total amounts due on the preferred securities of the trust will be paid before any distribution on the common securities of the trust is made. Events of Default The following will be events of default under each trust agreement: . an event of default under the subordinated indenture occurs with respect to any related junior subordinated notes; . the trust fails to pay any redemption price on any preferred securities on its due date; . the trust fails to pay any distribution on the preferred securities within 30 days from its due date; . the trustees fail to perform any of the covenants in the trust agreement, other than the covenants in the two prior bullet points, for 30 days after the holders of at least 25% of the aggregate liquidation amount of the outstanding preferred securities give Mutual Group, the issuing company and the trustees written notice of the default and require that they remedy the breach. However, the 30-day period may be extended by the holders of at least the same aggregate liquidation amount of the outstanding preferred securities that had initially given notice of the default; or . the property trustee files for bankruptcy or other events of bankruptcy, insolvency or reorganization occur with respect to the property trustee and a successor property trustee is not appointed within 90 days. If an event of default with respect to related junior subordinated notes occurs and is continuing under the applicable subordinated indenture, and the subordinated indenture trustee or the holders of not less than 25% in principal amount of the related junior subordinated notes outstanding fail to declare the unpaid principal of and all other amounts with respect to all of the related junior subordinated notes to be immediately due and payable, the holders of at least 25% in aggregate liquidation amount of the outstanding preferred securities will have the right to declare the unpaid principal of and all other amounts with respect to the related junior subordinated notes immediately due and payable by providing notice to Mutual Group, the issuing company, the property trustee and the subordinated indenture trustee. At any time after a declaration of acceleration has been made with respect to a series of related junior subordinated notes and before a judgment or decree for payment of the money due has been obtained, the holders of a majority in aggregate liquidation amount of the preferred securities may rescind any declaration of acceleration with respect to the related junior subordinated notes and its consequences: . if the issuing company deposits with the trustee funds sufficient to pay all overdue principal of and premium, interest and additional amounts on the related junior subordinated notes and any other amounts due to the subordinated indenture trustee and the property trustee; and 35 . if all existing events of default with respect to the related junior subordinated notes have been cured or waived except non-payment of principal on the related junior subordinated notes that has become due solely because of the acceleration. The holders of a majority in liquidation amount of the preferred securities of a trust may waive any past default under the subordinated note indenture with respect to the related junior subordinated notes, other than a default in any payment on any related junior subordinated notes or a default with respect to a covenant or provision that cannot be amended or modified without the consent of the holder of each outstanding related junior subordinated note affected. In addition, the holders of at least a majority in liquidation amount of the preferred securities of a trust may waive any past default under the trust agreement. The holders of a majority in liquidation amount of the preferred securities of a trust shall have the right to direct the time, method and place of conducting any proceedings for any remedy available to the property trustee or to direct the exercise of any trust or power conferred on the property trustee under the applicable trust agreement. A holder of preferred securities of a trust may institute a legal proceeding directly against the issuing company of the related junior subordinated notes without first instituting a legal proceeding against the property trustee or any other person or entity, for enforcement of payment to the holder of the principal of and any premium, interest or additional amounts on related junior subordinated notes having a principal amount equal to the aggregate liquidation amount of the preferred securities of the holder if the issuing company fails to pay any amounts on the related junior subordinated notes when payable. The issuing company and the subordinated indenture trustee may not amend or modify the subordinated indenture to eliminate the preferred securities holders' right to institute a direct legal action without the consent of the holders of each outstanding preferred security. Notice of Default If an event occurs which is or would become an event of default with respect to any preferred securities, and the property trustee knows of the event, the property trustee shall mail to the holders of the affected preferred securities a notice of the default within 90 days, unless the default has been cured or waived by the holders of the affected preferred securities. However, except in the case of a default in the payment of any amounts due on preferred securities, the property trustee may withhold the notice if and so long as the directors and/or responsible officers of the property trustee determine in good faith that withholding the notice is in the interest of the holders of the affected preferred securities. Mutual Group, the issuing company and the administrative trustees of each trust are required to furnish annually to the property trustee an officers' certificate to the effect that, to the best knowledge of the officers providing the certificate, it is not in default under the applicable trust agreement or, if there has been a default, specifying the default and its status. Consolidation, Merger or Amalgamation of the Trust None of the trusts may consolidate or merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any entity, except as described below. A trust may, without the consent of the holders of the outstanding preferred securities, consolidate or merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to a trust organized under the laws of any State if: . the successor entity either: . expressly assumes all of the obligations of the trust relating to its preferred securities; or . substitutes for the trust's preferred securities other securities having substantially the same terms as the preferred securities, so long as the substituted successor securities rank the same as the preferred securities for distributions and payments upon liquidation, redemption and otherwise; 36 . a trustee of the successor entity who has substantially the same powers and duties as the property trustee of the trust is appointed; . the preferred securities are listed or traded, or any substituted successor securities will be listed upon notice of issuance, on the same national securities exchange or other organization on which the preferred securities are then listed or traded; . the event does not cause the preferred securities or any substituted successor securities to be downgraded by any national rating agency; . the event does not adversely affect the rights, preferences and privileges of the holders of the preferred securities or any substituted successor securities in any material respect; . the successor entity has a purpose substantially identical to that of the trust; . prior to the merger event, Mutual Group has received an opinion of counsel from a nationally recognized law firm stating that: . the event does not adversely affect the rights, preferences and privileges of the holders of the trust's preferred securities or any successor securities in any material respect; . following the event, neither the trust nor the successor entity will be required to register as an investment company under the Investment Company Act of 1940; and . neither the trust nor the successor entity will be taxable as a corporation or classified other than as a grantor trust for United States federal income tax purposes; and . Mutual Group or its permitted transferee owns all of the common securities of the successor entity and the substituted successor securities are guaranteed at least to the extent provided under the preferred securities guarantee. In addition, unless all of the holders of the preferred securities of a trust approve otherwise, the trust may not consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other entity or permit any other entity to consolidate, amalgamate, merge with or into or replace it if the transaction would cause the trust or the successor entity to be taxable as a corporation or classified other than as a grantor trust for United States federal income tax purposes. Voting Rights Unless otherwise specified in the prospectus supplement, the holders of the preferred securities of a trust will have no voting rights except as discussed below and under "--Events of Default," "--Amendment of the Trust Agreement," "--Removal and Replacement of Trustees" and "Description of the Preferred Securities Guarantees and the MRM Trust Guarantees--Amendments and Assignment," and as otherwise required by law. If any proposed amendment to a trust agreement provides for, or the administrative trustees of a trust otherwise propose to effect: . any action that would adversely affect the powers, preferences or special rights of the preferred securities of the trust in any material respect, whether by way of amendment to the applicable trust agreement or otherwise; or . the dissolution, winding-up or termination of the trust other than pursuant to the terms of the applicable trust agreement, then the holders of the preferred securities of the trust as a class will be entitled to vote on the amendment or proposal. In that case, the amendment or proposal will be effective only if approved by the holders of at least a majority in aggregate liquidation amount of the preferred securities of the trust. Without obtaining the prior approval of the holders of at least a majority in aggregate liquidation amount of the preferred securities of a trust, the trustees of a trust may not: . direct the time, method and place of conducting any proceeding for any remedy available to the subordinated indenture trustee for any related junior subordinated notes or direct the exercise of any trust or power conferred on the property trustee with respect to the preferred securities of the trust; 37 . waive any default that is waivable under the subordinated indenture with respect to any related junior subordinated notes; . cancel an acceleration of the principal of any related junior subordinated notes; or . consent to any amendment, modification or termination of the subordinated indenture or any related junior subordinated notes where consent is required. However, if a consent under the subordinated indenture requires the consent of each affected holder of the related junior subordinated notes, then the property trustee must obtain the prior consent of each holder of the preferred securities of the trust. In addition, before taking any of the foregoing actions, the property trustee shall obtain an opinion of counsel experienced in such matters to the effect that, as a result of such actions, the trust will not be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes. The property trustee will notify all preferred securities holders of the trust of any notice of default received from the subordinated indenture trustee with respect to the junior subordinated notes held by the trust. Any required approval of the holders of the preferred securities of a trust may be given at a meeting of the holders of the preferred securities convened for the purpose or pursuant to written consent. The property trustee will cause a notice of any meeting at which holders of securities are entitled to vote to be given to each holder of record of the preferred securities at the holder's registered address, or to any other address which has been specified in writing, at least 15 days and not more than 90 days before the meeting. Notwithstanding that the holders of the preferred securities of a trust are entitled to vote or consent under any of the circumstances described above, any of the preferred securities that are owned by MRM, Mutual Group, the trustees of the trust or any affiliate of MRM, Mutual Group or any trustees of the trust, shall, for purposes of any vote or consent, be treated as if they were not outstanding. Amendment of the Trust Agreement Each trust agreement may be amended from time to time by Mutual Group, the issuing company, the property trustee and the administrative trustees of the trust without the consent of the holders of the preferred securities of the trust to: . cure any ambiguity, correct or supplement any provision which may be inconsistent with any other provision or make provisions not inconsistent with any other provisions with respect to matters or questions arising under the applicable trust agreement, . modify, eliminate or add to any provisions to the extent necessary to ensure that the trust will not be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes, to ensure that the junior subordinated notes held by the trust are treated as indebtedness for United States federal income tax purposes or to ensure that the trust will not be required to register as an investment company under the Investment Company Act, or . to add to the covenants, restrictions or obligations of Mutual Group or the issuing company, in each case to the extent that the amendment does not adversely affect the interests of any holder of the preferred securities of the trust in any material respect. Other amendments to a trust agreement may be made by Mutual Group, the issuing company, the property trustee and the administrative trustees of a trust upon approval of the holders of at least a majority in aggregate liquidation amount of the outstanding preferred securities of the trust and receipt by the trustees of an opinion of counsel to the effect that the amendment will not cause the trust to be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes, affect the treatment of the junior subordinated notes held by the trust as indebtedness for United States federal income tax purposes or affect the trust's exemption from the Investment Company Act. 38 Notwithstanding the foregoing, without the consent of each affected holder of common or preferred securities of a trust, the applicable trust agreement may not be amended to: . change the amount or timing of any distribution on the common or preferred securities of the trust or otherwise adversely affect the amount of any distribution required to be made in respect of the securities as of a specified date; . restrict the right of a holder of any securities to institute suit for the enforcement of any payment on or after the distribution date; or . reduce the percentage of preferred securities required to waive compliance with provisions of or defaults under the trust agreement. In addition, no amendment may be made to a trust agreement if the amendment would: . cause the applicable trust to be taxable as a corporation or characterized as other than a grantor trust for United States federal income tax purposes; . cause the junior subordinated notes held by the applicable trust to not be treated as indebtedness for United States federal income tax purposes; . cause the applicable trust to be deemed to be an investment company required to be registered under the Investment Company Act; or . impose any additional obligation on any trustee of the applicable trust without its consent. Removal and Replacement of Trustees The holder of a trust's common securities may remove or replace any of the administrative trustees and, unless an event of default has occurred and is continuing under the applicable subordinated indenture, the property trustee and the Delaware trustee of the trust. If an event of default has occurred and is continuing under the applicable subordinated indenture, only the holders of a trust's preferred securities may remove or replace the property trustee and the Delaware trustee. The resignation or removal of any trustee will be effective only upon the acceptance of appointment by the successor trustee in accordance with the provisions of the applicable trust agreement. Registration and Transfer If the preferred securities of a series are to be redeemed, the applicable trust will not be required to: . issue, register the transfer of or exchange any preferred securities of that series during the 15 days immediately preceding the date notice is mailed identifying the preferred securities that are called for redemption; or . register the transfer of or exchange any preferred security selected for redemption, in whole or in part, except for the unredeemed portion of a preferred security being redeemed in part. Payment and Paying Agent Unless the applicable prospectus supplement states otherwise, distributions on the preferred securities will be payable, at the applicable trust's option, (1) by check mailed to the address of the person entitled to the distribution as the address appears in the security register for the preferred securities or (2) by wire transfer to an account specified by the holder in accordance with procedures established by the administrative trustees and acceptable to the paying agent. Payments upon the redemption of the preferred securities will be paid only against surrender of the preferred securities. Unless the applicable prospectus supplement states otherwise, the property trustee will act as paying agent for the preferred securities, and the principal corporate trust office of the property trustee will serve as the office through which the paying agent acts. The applicable trust may designate additional paying agents, rescind the designation of any paying agents and/or approve a change in the office through which any paying agent acts. 39 Information Concerning the Property Trustee For matters relating to compliance with the Trust Indenture Act, the property trustee will have all of the duties and responsibilities of an indenture trustee under the Trust Indenture Act. In case an event of default shall occur and be continuing, the property trustee must use the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Before proceeding to exercise any right or power under any trust agreement at the direction of the holders of the preferred securities, the property trustee will be entitled to receive from the holders reasonable security or indemnity against the costs, expenses and liabilities that it might incur. The Chase Manhattan Bank, which is the property trustee for each trust, also serves as the senior indenture trustee under each senior indenture, the subordinated indenture trustee under each subordinated indenture and the guarantee trustee under each preferred securities guarantee described below. Chase Manhattan Bank Delaware, an affiliate of The Chase Manhattan Bank, serves as the Delaware trustee for each trust. Miscellaneous The administrative trustees of each trust are authorized and directed to conduct the affairs of and to operate the trust in such a way that: . it will not be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes; . the junior subordinated notes held by it will be treated as indebtedness of the issuing company for United States federal income tax purposes; and . it will not be deemed to be an investment company required to be registered under the Investment Company Act. Mutual Group and the trustees of each trust are authorized to take any action, so long as it is consistent with applicable law, the applicable certificate of trust or trust agreement, that Mutual Group and the trustees of the trust determine to be necessary or desirable for the above purposes. Holders of the preferred securities of the trusts have no preemptive or similar rights. None of the trusts may incur indebtedness or place a lien on any of its assets. Governing Law Each trust agreement and the preferred securities of each trust will be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. 40 DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES AND THE MRM TRUST GUARANTEES MRM's preferred securities guarantee for each trust will be issued pursuant to a guarantee agreement between MRM and The Chase Manhattan Bank, as the guarantee trustee. Mutual Group's preferred securities guarantee for each trust and the related MRM trust guarantee will be issued pursuant to a guarantee agreement among Mutual Group, MRM and The Chase Manhattan Bank, as the guarantee trustee. We have filed forms of the guarantee agreements as exhibits to the registration statement of which this prospectus is a part. You also may request a copy of the guarantee agreements from the guarantee trustee at its corporate trust office in New York, New York. Each guarantee agreement will be qualified under the Trust Indenture Act of 1939. The terms of a preferred securities guarantee will include those stated in the applicable guarantee agreement and those made part of the guarantee agreement by reference to the Trust Indenture Act. A guarantee agreement will be executed at the time any trust issues any preferred securities and will be filed with the SEC on a Form 8-K or by a post-effective amendment to the registration statement of which this prospectus is a part. Each guarantee agreement will be held by the guarantee trustee for the benefit of the holders of the preferred securities of the applicable trust. General The issuing company will irrevocably and unconditionally agree to pay in full to the holders of the preferred securities of each trust the guarantee payments described below, except to the extent previously paid. The issuing company will pay the guarantee payments when and as due, regardless of any defense, right of set-off or counterclaim that the applicable trust may have or assert. The following payments, to the extent not paid by a trust, will be covered by the applicable preferred securities guarantee: . any accumulated and unpaid distributions required to be paid on the preferred securities of the trust, to the extent that the trust has funds available to make the payment; . the redemption price, including all accumulated and unpaid distributions, to the extent that the trust has funds available to make the payment; and . upon a voluntary or involuntary dissolution, termination, winding-up or liquidation of the trust, other than in connection with a distribution of related junior subordinated notes to holders of the preferred securities, the lesser of: . the aggregate of the liquidation amounts specified in the prospectus supplement for each preferred security of the trust plus all accumulated and unpaid distributions on the preferred security of the trust to the date of payment, to the extent the trust has funds available to make the payment; and . the amount of assets of the trust remaining available for distribution to holders of its preferred securities upon liquidation of the trust. The issuing company's obligation to make a guarantee payment with respect to the preferred securities of a trust may be satisfied by directly paying the required amounts to the holders of the preferred securities of the trust or by causing the trust to pay the amounts to the holders. Each preferred securities guarantee will be subject to the subordination provisions described below and will not apply to the payment of distributions and other payments on the preferred securities of a trust when the trust does not have sufficient funds legally and immediately available to make the distributions or other payments. MRM Trust Guarantee Unless provided otherwise in a prospectus supplement, MRM will fully and unconditionally guarantee all obligations with respect to each preferred securities guarantee issued by Mutual Group. Unless provided otherwise in a prospectus supplement, each MRM trust guarantee will be unsecured indebtedness of MRM and will be subordinated in right of payment to all of MRM's existing and future senior indebtedness. Each MRM 41 trust guarantee will be effectively subordinated to any secured indebtedness of MRM to the extent of the value of the assets securing the secured indebtedness. Each MRM trust guarantee will also rank equally with any other MRM trust guarantee of any preferred securities guarantee issued by Mutual Group. As a result, in the event of MRM's bankruptcy, liquidation or reorganization or upon an event of default by Mutual Group of its obligations under any of its preferred securities guarantees, or upon a default by MRM under any of its trust guarantees, MRM's assets will be available to pay MRM's obligations on an MRM trust guarantee only after all secured and senior indebtedness of MRM has been paid in full in cash or other payment satisfactory to the holders of the secured and senior indebtedness has been made. There may not be sufficient assets remaining to pay amounts due on any or all of the MRM trust guarantees. Each MRM trust guarantee will also be effectively subordinated to the indebtedness and other liabilities of MRM's subsidiaries. Each MRM trust guarantee does not prohibit or limit the incurrence of secured or senior indebtedness or the incurrence of other indebtedness and liabilities by MRM or its subsidiaries. The incurrence of additional secured and senior indebtedness and other liabilities by MRM or its subsidiaries could adversely affect MRM's ability to pay its obligations on an MRM trust guarantee. Each MRM trust guarantee will constitute a guarantee of payment and not of collection. This means that the holder of the guaranteed security may sue MRM to enforce its rights under the MRM trust guarantee without first suing any other person or entity. Additional Amounts MRM will make all payments under each of its preferred securities guarantees and all payments under each of its MRM trust guarantees without withholding or deduction for any taxes, fees, duties, assessments or governmental charges imposed or levied by Bermuda or any other jurisdiction in which MRM or any successor is organized or resident for tax purposes or any political subdivision or taxing authority of Bermuda or any of those other jurisdictions. If any withholding or deduction is required by law, MRM will pay to the holder of the preferred securities additional amounts as may be necessary so that every net payment made to the holder after the withholding or deduction will not be less than the amount provided for in the applicable preferred securities guarantee. MRM will not be required to pay any additional amounts as a result of: . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the preferred securities was a resident or national of or had other specified connections with the relevant taxing jurisdiction or presented the preferred securities for payment in the relevant taxing jurisdiction unless it could not have been presented elsewhere; . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the preferred securities presented the preferred security for payment more than 30 days after it was due and payable; . any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or . the imposition of any tax, fee, duty, assessment or governmental charge that would not have been imposed but for the fact that the holder or beneficial owner of the preferred securities failed to comply, within 90 days, with any reasonable request by MRM addressed to the holder or beneficial owner relating to the provision of information or the making of a declaration required by the taxing jurisdiction as a precondition to exemption from all or part of the tax, fee, duty, assessment or governmental charge. In addition, MRM will not be required to pay additional amounts with respect to any payment to any holder of a preferred security where the beneficial owner of the preferred security is a fiduciary or partnership to the extent that such payment would be required to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or a partner of such partnership that would not have been entitled to such additional amounts if it had been the holder of the preferred security. Subordination Each preferred securities guarantee will be unsecured indebtedness of the issuing company and will be subordinated in right of payment to all of the issuing company's existing and future senior indebtedness. Each preferred securities guarantee will be effectively subordinated to any secured indebtedness of the issuing 42 company to the extent of the value of the assets securing the secured indebtedness. Each preferred securities guarantee will also rank equally with any other preferred securities guarantee issued by the issuing company. As a result, in the event of the issuing company's bankruptcy, liquidation or reorganization or upon an event of default under any of its preferred securities guarantees, the issuing company's assets will be available to pay its obligations on the preferred securities guarantee only after all secured and senior indebtedness of the issuing company has been paid in full in cash or other payment satisfactory to the holders of the secured and senior indebtedness has been made. There may not be sufficient assets remaining to pay amounts due on any or all of its preferred securities guarantees. Each preferred securities guarantee will also be effectively subordinated to the indebtedness and other liabilities of the issuing company's subsidiaries. The incurrence of additional secured and senior indebtedness and other liabilities by the issuing company or its subsidiaries could adversely affect the issuing company's ability to pay its obligations on the preferred securities guarantees. Each preferred securities guarantee will constitute a guarantee of payment and not of collection. This means that the holder of the guaranteed security may sue the issuing company to enforce its rights under the preferred securities guarantee without first suing any other person or entity. Amendments and Assignment No consent of the holders of the preferred securities of a trust will be required with respect to any changes to the preferred securities guarantee that do not adversely affect the rights of the holders of the preferred securities of the applicable trust in any material respect. Other amendments to the preferred securities guarantee may be made only with the prior approval of the holders of at least a majority in aggregate liquidation amount of the preferred securities of the applicable trust. All guarantees and agreements contained in the preferred securities guarantee will be binding on the issuing company's successors, assigns, receivers, trustees and representatives and are for the benefit of the holders of the preferred securities of the applicable trust. Events of Default An event of default under a preferred securities guarantee occurs if the issuing company: . fails to make any required payments; or . fails to perform any of its other obligations under the preferred securities guarantee and such failure continues for 30 days. The holders of at least a majority in aggregate liquidation amount of the preferred securities of a trust will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the guarantee trustee relating to the preferred securities guarantee of the trust or to direct the exercise of any trust or power given to the guarantee trustee under the preferred securities guarantee of the trust. If and to the extent that the issuing company does not make payments on the related junior subordinated notes and, if applicable, MRM does not make payments on the MRM junior subordinated note guarantee, the trust will not have funds available to make payments of distributions or other amounts due on its preferred securities. In those circumstances, a holder of the preferred securities of the trust will not be able to rely upon the applicable preferred securities guarantee or the MRM trust guarantee, if applicable, for payment of these amounts. Instead, the holder may directly sue the issuing company under the junior subordinated notes or MRM under the MRM junior subordinated note guarantee, if applicable, to collect its pro rata share of payments owed. If a holder so sues MRM or Mutual Group to collect payment, then MRM or Mutual Group, as the case may be, will assume the holder's rights as a holder of preferred securities under the applicable trust agreement to the extent MRM or Mutual Group makes a payment to the holder in any legal action. The holders of at least a majority in liquidation amount of preferred securities of a trust may waive any past event of default and its consequences. 43 Information Concerning Guarantee Trustee In case an event of default shall occur and be continuing, the guarantee trustee must exercise the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Before proceeding to exercise any right or power under any guarantee agreement at the direction of the holders of preferred securities, the guarantee trustee will be entitled to receive from the holders reasonable security and indemnity against the costs, expenses and liabilities that it might incur. The Chase Manhattan Bank, which is the guarantee trustee, also serves as the senior indenture trustee under each senior indenture, the subordinated indenture trustee under each subordinated indenture and the property trustee for each trust. Chase Manhattan Bank Delaware, an affiliate of The Chase Manhattan Bank, serves as the Delaware trustee for each trust. Termination of the Preferred Securities Guarantees and MRM Trust Guarantees Each preferred securities guarantee and MRM trust guarantee will terminate once the preferred securities of the applicable trust are paid in full or redeemed in full or upon distribution of the related junior subordinated notes to the holders of the preferred securities of the trust in accordance with the applicable trust agreement. Each preferred securities guarantee and MRM trust guarantee will continue to be effective or will be reinstated if at any time any holder of preferred securities of the applicable trust must restore payment of any sums paid under the preferred securities, the preferred securities guarantee or the MRM trust guarantee for the applicable trust. Governing Law Each preferred securities guarantee and MRM trust guarantee will be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof. 44 RELATIONSHIP AMONG THE PREFERRED SECURITIES, PREFERRED SECURITIES GUARANTEES AND JUNIOR SUBORDINATED NOTES HELD BY THE TRUSTS Payments due on the preferred securities of a trust, to the extent the applicable trust has funds available for the payments, will be guaranteed by the issuing company and by MRM, if applicable, to the extent described under "Description of the Preferred Securities Guarantees and the MRM Trust Guarantees." Payments due on junior subordinated notes issued by Mutual Group to a trust will be guaranteed by MRM to the extent described under "Description of the Junior Subordinated Notes and the MRM Junior Subordinated Note Guarantees." No single document executed by MRM or Mutual Group in connection with the issuance of the preferred securities of a trust will provide for a full, irrevocable and unconditional guarantee of the preferred securities of the trust. It is only the combined operation of the issuing company's obligations under the applicable preferred securities guarantee, trust agreement, subordinated indenture and related junior subordinated notes and, if applicable, MRM's obligations under the MRM junior subordinated note guarantee and the MRM trust guarantee, that has the effect of providing a full, irrevocable and unconditional guarantee by MRM of each trust's obligations under its preferred securities. As long as the issuing company makes payments of interest and other payments when due on the junior subordinated notes held by a trust, the payments will be sufficient to cover the payment of distributions and redemption and liquidation payments due on the preferred securities of the trust, primarily because: . the aggregate principal amount of the junior subordinated notes held by the trust will be equal to the sum of the aggregate liquidation amounts of the trust's preferred and common securities; . the interest rate and interest and other payment dates on the junior subordinated notes held by the trust will match the distribution rate and distribution and other payment dates for the trust's preferred securities; . the issuing company has agreed to pay for any and all costs, expenses and liabilities of the trust except the trust's obligations under its preferred securities; and . the applicable trust agreement provides that the trust will not engage in any activity that is inconsistent with the limited purposes of the trust. 45 PLAN OF DISTRIBUTION MRM or Mutual Group may sell its senior notes or its junior subordinated notes and each trust may sell its preferred securities in one or more of the following ways from time to time: . to underwriters for resale to the public or to institutional investors; . through agents to the public or to institutional investors; or . directly to institutional investors. The prospectus supplement for each series of senior notes, junior subordinated notes or preferred securities will set forth the terms of the offering of those senior notes, junior subordinated notes or preferred securities, including the name or names of any underwriters or agents. The prospectus supplement for each series of senior notes, junior subordinated notes or preferred securities will also set forth the purchase price of the senior notes, junior subordinated notes or preferred securities, the proceeds to MRM, Mutual Group or the applicable trust from the sale, any underwriting discounts or agency fees and other items constituting underwriters' or agents' compensation, the initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers and the securities exchange, if any, on which the senior notes, junior subordinated notes or preferred securities may be listed. If underwriters participate in the sale, the senior notes, junior subordinated notes or preferred securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless the applicable prospectus supplement states otherwise, the obligations of the underwriters to purchase any series of senior notes, junior subordinated notes or preferred securities will be subject to conditions precedent and the underwriters will be obligated to purchase all of the series of senior notes, junior subordinated notes or preferred securities if any are purchased. Underwriters and agents may be entitled under agreements entered into with MRM, Mutual Group and/or a trust to indemnification against specific civil liabilities, including liabilities under the Securities Act. Underwriters and agents may engage in transactions with, or perform services for, us in the ordinary course of business. Each series of senior notes, junior subordinated notes or preferred securities will be a new issue of securities and will have no established trading market. Any underwriters to whom the senior notes, junior subordinated notes or preferred securities are sold for public offering and sale may make a market in those senior notes, junior subordinated notes or preferred securities. However, those underwriters will not be obligated to do so and may discontinue any market making at any time without notice. EXPERTS Ernst & Young, independent auditors, have audited MRM's consolidated financial statements and schedules included in its Annual Report on Form 10-K, as amended by its Annual Report on Form 10-K/A, for the year ended December 31, 1999, as set forth in their report, which is incorporated by reference in this prospectus and registration statement. MRM's financial statements and schedules are incorporated by reference in reliance on Ernst & Young's report, given on their authority as experts in accounting and auditing. VALIDITY OF THE SECURITIES Richards, Layton & Finger, P.A., Wilmington, Delaware, will pass upon the validity of the preferred securities for each trust. Mayer, Brown & Platt, Chicago, Illinois, will pass upon the validity of the senior notes, the junior subordinated notes and the preferred securities guarantees for Mutual Group. Conyers Dill & Pearman, 46 Hamilton, Bermuda, will pass upon the validity of the senior notes, the junior subordinated notes, the MRM senior note guarantee, the MRM junior subordinated note guarantee, the MRM trust guarantee and the preferred securities guarantee for MRM. David J. Doyle, an associate with Conyers Dill & Pearman, is a director of MRM. Debevoise & Plimpton, New York, New York, will pass on certain legal matters for the agents or underwriters. ENFORCEMENT OF CIVIL LIABILITIES MRM is organized under the laws of Bermuda. In addition, some of its directors and officers, as well as some of the experts named in this prospectus, reside outside of the United States. A substantial portion of their assets are located outside of the United States. If may be difficult for you to effect service of process within the United States upon MRM's directors, officers and experts who reside outside the United States or to enforce in the United States judgments of U.S. courts obtained in actions against MRM or its directors and officers, as well as the experts named in this prospectus, who reside outside the United States. We have been informed by Conyers Dill & Pearman, our legal advisor in Bermuda, that the United States and Bermuda do not have a treaty providing for reciprocal recognition and enforcement of judgments in civil and commercial matters. A final judgment for the payment of money rendered by any federal or state court in the United States based on civil liability, whether or not predicted solely upon the federal securities laws, would, therefore, not be automatically enforceable in Bermuda. A Bermuda court may impose civil liability on MRM, or its directors or officers who reside in Bermuda, in a suit brought in The Supreme Court of Bermuda against them with respect to a violation of federal securities law, provided that the facts surrounding such violation would constitute or give rise to a cause of action under Bermuda law. WHERE YOU CAN FIND MORE INFORMATION Available Information This prospectus is part of a registration statement that we filed with the SEC. The registration statement, including the attached exhibits, contains additional relevant information about MRM, Mutual Group and the trusts. The rules and regulations of the SEC allow us to omit some of the information included in the registration statement from this prospectus. In addition, MRM files reports, proxy statements and other information with the SEC under the Exchange Act. You can read and copy any of this information at the following locations of the SEC: Public Reference Room New York Regional Office Chicago Regional Office 450 Fifth Street, N.W. 7 World Trade Center Citicorp Center Room 1024 Suite 1300 500 West Madison Street Washington, D.C. 20549 New York, New York 10048 Suite 1400 Chicago, Illinois 60661- 2551 You may also obtain copies of this information by mail from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. You may obtain information on the operation of the SEC's Public Reference Room in Washington, D.C. by calling the SEC at 1- 800-SEC-0330. The SEC also maintains an Internet web site that contains reports, proxy statements and other information about issuers, like MRM, that file electronically with the SEC. The address of that site is http://www.sec.gov. The SEC file number for documents filed by MRM under the Exchange Act is 1- 10760. MRM common stock is listed on the New York Stock Exchange and its stock symbol is "MM." You can inspect reports, proxy statements and other information concerning MRM at the offices of the New York Stock Exchange at 20 Broad Street, New York, New York 10005. 47 Incorporation by Reference The rules of the SEC allow us to incorporate by reference information into this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus incorporates by reference the documents listed below: (a) MRM's Annual Report on Form 10-K, as amended by its Annual Report on Form 10-K/A, for the year ended December 31, 1999; (b) MRM's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000; (c) All documents filed by MRM pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus shall be deemed to be incorporated by reference and to be a part of this prospectus from the respective dates of filing of those documents. Upon request, we will provide without charge to each person to whom a copy of this prospectus has been delivered a copy of any and all of these filings. You may request a copy of these filings by writing or telephoning us at: Investor Relations Department Mutual Risk Management 44 Church Street P.O. Box HM 2064 Hamilton HM 12 Bermuda (441) 295-5688 ---------------- For North Carolina residents: MRM debt securities have not been approved or disapproved by the Commissioner of Insurance of the State of North Carolina, nor has the Commissioner of Insurance ruled upon the accuracy or adequacy of this document. Except as expressly provided in an underwriting agreement, no offered securities may be offered or sold in Bermuda, although offers may be made from outside Bermuda, and offers may only be accepted from persons resident in Bermuda, for Bermuda exchange control purposes, where such offers have been delivered outside of Bermuda. Persons resident in Bermuda, for Bermuda exchange control purposes, may require the prior approval of the Bermuda Monetary Authority in order to acquire any offered securities. 48 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The estimated expenses of issuance and distribution, other than underwriting discounts and commissions, to be borne by us are as follows: Securities and Exchange Commission registration fee............. $132,000 Trustee fees and expenses....................................... 15,000 Printing expenses............................................... 170,000 Legal fees and expenses......................................... 250,000 Accounting fees and expenses.................................... 300,000 Blue Sky fees and expenses...................................... 15,000 Miscellaneous................................................... 68,000 -------- Total....................................................... $950,000 ========
Item 15. Indemnification of Officers and Directors. MRM's Bye-Laws provide that it shall indemnify, subject to the proviso below, every director, officer of MRM and member of a committee thereof out of the funds of MRM against all civil liabilities, loss, damage or expense (including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all reasonable legal and other costs and expenses properly payable) incurred or suffered by him as such director, officer or committee member and any person acting as a director, officer or committee member in the reasonable belief that he has been so appointed or elected notwithstanding any defect in such appointment or election provided always that the indemnity contained by the Bye-Laws shall not extend to any matter which would render it void pursuant to the Bermuda Companies Acts. To the extent that any director, officer or member of a committee duly constituted under the Bye-Laws is entitled to claim an indemnity pursuant to the Bye-Laws in respect of amounts paid or discharged by him, the relative indemnity shall take effect as an obligation of MRM to reimburse the person making such payment or effecting such discharge. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by MRM in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of a director or officer to repay such amount, unless it shall be ultimately determined that he is entitled to be indemnified by MRM as authorized in the Bye-Laws or otherwise pursuant to applicable laws. Mutual Group's By-Laws provide that it shall indemnify its officers, directors, employees and agents to the extent permitted by the Delaware General Corporation Law, referred to in this document as the DGCL. Under the DGCL, a corporation may indemnify a director or officer who becomes a party to an action, suit or proceeding because of his or her position as a director or officer if (1) the director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interest of the corporation and (2) if the action or proceeding involves a criminal offense, the director or officer had no reasonable cause to believe his or her conduct was unlawful. II-1 Item 16. Exhibits. 1.1 Form of Underwriting Agreement (Senior Notes of Mutual Group). *1.2 Form of Underwriting Agreement (Senior Notes of MRM and Junior Subordinated Notes of MRM and Mutual Group). *1.3 Form of Underwriting Agreement (Preferred Securities). 3.1 Memorandum of Association of MRM (incorporated by reference to MRM's Registration Statement on Form S-1 (No. 33-40152)). 3.2 Bye-Laws of MRM (incorporated by reference to MRM's Registration Statement on Form S-1 (No. 33-40152)). **3.3 Certificate of Incorporation of Mutual Group Ltd. **3.4 Bylaws of Mutual Group Ltd. **3.5 Certificate of Trust of MRM Capital Trust I. **3.6 Certificate of Trust of MRM Capital Trust II. **3.7 Certificate of Trust of MRM Capital Trust III. 4.1 Form of Indenture for Senior Notes issued by MRM. 4.2 Form of Indenture for Senior Notes issued by Mutual Group. 4.3 Form of Indenture for Junior Subordinated Notes issued by MRM. 4.4 Form of Indenture for Junior Subordinated Notes issued by Mutual Group. 4.5 Form of Senior Note issued by MRM (included in Exhibit 4.1). 4.6 Form of Senior Note issued by Mutual Group (included in Exhibit 4.2). 4.7 Form of Junior Subordinated Note issued by MRM (included in Exhibit 4.3). 4.8 Form of Junior Subordinated Note issued by Mutual Group (included in Exhibit 4.4). **4.9 Trust Agreement of MRM Capital Trust I. **4.10 Trust Agreement of MRM Capital Trust II. **4.11 Trust Agreement of MRM Capital Trust III. 4.12 Removal and Appointment of Trustee of MRM Capital Trust I. 4.13 Removal and Appointment of Trustee of MRM Capital Trust II. 4.14 Removal and Appointment of Trustee of MRM Capital Trust III. 4.15 Form of Amended and Restated Trust Agreement of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III. 4.16 Form of Preferred Security (included in Exhibit 4.15). 4.17 Form of Preferred Securities Guarantee Agreement of MRM with respect to the preferred securities issued by MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III. 4.18 Form of Preferred Securities Guarantee Agreement of Mutual Group with respect to the preferred securities issued by MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III. 5.1 Opinions of Richards, Layton & Finger, P.A., special Delaware counsel for MRM, Mutual Group and each Trust. 5.2 Opinion of Mayer, Brown & Platt, counsel for Mutual Group. 5.3 Opinion of Conyers Dill & Pearman, counsel for MRM.
II-2 23.1 Consent of Ernst & Young. 23.2 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.1). 23.3 Consent of Mayer, Brown & Platt (included in Exhibit 5.2). 23.4 Consent of Conyers Dill & Pearman (included in Exhibit 5.3). **24.1 Powers of Attorney. 25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Senior Notes issued by MRM). 25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Senior Notes issued by Mutual Group). 25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Junior Subordinated Notes issued by MRM). 25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Junior Subordinated Notes issued by Mutual Group). 25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Property Trustee for the Amended and Restated Trust Agreement of MRM Capital Trust I. 25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Property Trustee for the Amended and Restated Trust Agreement of MRM Capital Trust II. 25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Property Trustee for the Amended and Restated Trust Agreement of MRM Capital Trust III. 25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of MRM for the benefit of the holders of Preferred Securities of MRM Capital Trust I. 25.9 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of MRM for the benefit of the holders of Preferred Securities of MRM Capital Trust II. 25.10 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of MRM for the benefit of the holders of Preferred Securities of MRM Capital Trust III. 25.11 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of Mutual Group for the benefit of the holders of Preferred Securities of MRM Capital Trust I. 25.12 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of Mutual Group for the benefit of the holders of Preferred Securities of MRM Capital Trust II. 25.13 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of Mutual Group for the benefit of the holders of Preferred Securities of MRM Capital Trust III.
- -------- * To be filed as an exhibit to a report on Form 8-K pursuant to Item 601 of Regulation S-K ** Previously filed II-3 Item 17. Undertakings. The undersigned registrants hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (a) to include any prospectus required by Section 10(a)(3) of the Securities Act; (b) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (c) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that (a) and (b) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrants pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered in the post- effective amendment, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of MRM's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered in this registration statement, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof. (5) To file an application for the purpose of determining the eligibility of the trustees to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Securities Act. (6) To provide to the underwriter at the closing specified in the underwriting agreements certificates in such denominations and registered in the names as required by the underwriter to permit prompt delivery to each purchaser. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the provisions described under Item 15 above, or otherwise, the registrants have been advised that in the opinion of the SEC this type of indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against these types of liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by any director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether the asserted indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of the issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Mutual Risk Management Ltd. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Hamilton, Bermuda on the 22nd day of May, 2000. Mutual Risk Management Ltd. By: /s/ James C. Kelly ___________________________________ James C. Kelly Senior Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons on behalf of the Registrant and in the capacities and on the 22nd day of May, 2000.
Signature Title --------- ----- /s/ Robert A. Mulderig* Chairman and Chief Executive Officer ___________________________________________ (Principal Executive Officer) Robert A. Mulderig /s/ John Kessock, Jr.* President, Director and Authorized ___________________________________________ U.S. Representative John Kessock, Jr. /s/ Richard G. Turner* Executive Vice President and Director ___________________________________________ Richard G. Turner /s/ Glenn R. Partridge* Executive Vice President and Director ___________________________________________ Glenn R. Partridge /s/ James C. Kelly Senior Vice President and Chief Financial ___________________________________________ Officer James C. Kelly (Principal Financial and Accounting Officer) /s/ Roger E. Dailey* Director ___________________________________________ Roger E. Dailey /s/ David J. Doyle* Director ___________________________________________ David J. Doyle /s/ Arthur E. Engel* Director ___________________________________________ Arthur E. Engel /s/ Allan W. Fulkerson* Director ___________________________________________ Allan W. Fulkerson /s/ William F. Galtney, Jr.* Director ___________________________________________ William F. Galtney, Jr.
II-5
Signature Title --------- ----- /s/ Jerry S. Rosenbloom* Director ___________________________________________ Jerry S. Rosenbloom /s/ Joseph D. Sargent* Director ___________________________________________ Joseph D. Sargent /s/ Norman L. Rosenthal* Director ___________________________________________ Norman L. Rosenthal
/s/ James C. Kelly *By: ________________________________ James C. Kelly, Attorney-in-Fact II-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Mutual Group Ltd. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to registration statement to be signed on its behalf by the undersigned, therewith duly authorized, in Hamilton, Bermuda on the 22nd day of May, 2000. Mutual Group Ltd. /s/ James C. Kelly By: _________________________________ James C. Kelly Vice President and Controller Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons on behalf of the registrant and in the capacities and on the 22nd day of May, 2000.
Signature Title --------- ----- /s/ John Kessock, Jr.* President & Director ___________________________________________ (Principal Executive Officer) John Kessock, Jr. /s/ James C. Kelly Vice President & Controller ___________________________________________ (Principal Financial and Accounting James C. Kelly Officer) /s/ Robert A. Mulderig* Director ___________________________________________ Robert A. Mulderig /s/ Richard G. Turner* Director ___________________________________________
Richard G. Turner /s/ James C. Kelly *By: ________________________________ James C. Kelly, Attorney-in-Fact II-7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, each of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Hamilton, Bermuda, on the 22nd day of May, 2000. MRM Capital Trust I By: Mutual Group Ltd. as Depositor /s/ James C. Kelly By: _________________________________ James C. Kelly Vice President and Controller MRM Capital Trust II By: Mutual Group Ltd. as Depositor /s/ James C. Kelly By: _________________________________ James C. Kelly Vice President and Controller MRM Capital Trust III By: Mutual Group Ltd. as Depositor /s/ James C. Kelly By: _________________________________ James C. Kelly Vice President and Controller II-8 EXHIBIT INDEX 1.1 Form of Underwriting Agreement (Senior Notes of Mutual Group). *1.2 Form of Underwriting Agreement (Senior Notes of MRM and Junior Subordinated Notes of MRM and Mutual Group). *1.3 Form of Underwriting Agreement (Preferred Securities). 3.1 Memorandum of Association of MRM (incorporated by reference to MRM's Registration Statement on Form S-1 (No. 33- 40152)). 3.2 Bye-Laws of MRM (incorporated by reference to MRM's Registration Statement on Form S-1 (No. 33-40152)). **3.3 Certificate of Incorporation of Mutual Group Ltd. **3.4 Bylaws of Mutual Group Ltd. **3.5 Certificate of Trust of MRM Capital Trust I. **3.6 Certificate of Trust of MRM Capital Trust II. **3.7 Certificate of Trust of MRM Capital Trust III. 4.1 Form of Indenture for Senior Notes issued by MRM. 4.2 Form of Indenture for Senior Notes issued by Mutual Group. 4.3 Form of Indenture for Junior Subordinated Notes issued by MRM. 4.4 Form of Indenture for Junior Subordinated Notes issued by Mutual Group. 4.5 Form of Senior Note issued MRM (included in Exhibit 4.1). 4.6 Form of Senior Note issued by Mutual Group (included in Exhibit 4.2). 4.7 Form of Junior Subordinated Note issued by MRM (included in Exhibit 4.3). 4.8 Form of Junior Subordinated Note issued by Mutual Group (included in Exhibit 4.4). **4.9 Trust Agreement of MRM Capital Trust I. **4.10 Trust Agreement of MRM Capital Trust II. **4.11 Trust Agreement of MRM Capital Trust III. 4.12 Removal and Appointment of Trustee of MRM Capital Trust I. 4.13 Removal and Appointment of Trustee of MRM Capital Trust II. 4.14 Removal and Appointment of Trustee of MRM Capital Trust III. 4.15 Form of Amended and Restated Trust Agreement of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III. 4.16 Form of Preferred Security (included in Exhibit 4.15). 4.17 Form of Preferred Securities Guarantee Agreement of MRM with respect to the preferred securities issued by MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III. 4.18 Form of Preferred Securities Guarantee Agreement of Mutual Group with respect to the preferred securities issued by MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III. 5.1 Opinions of Richards, Layton & Finger, P.A., special Delaware counsel for MRM, Mutual Group and each Trust.
II-9 5.2 Opinion of Mayer, Brown & Platt, counsel for Mutual Group. 5.3 Opinion of Conyers Dill & Pearman, counsel for MRM. 23.1 Consent of Ernst & Young 23.2 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.1). 23.3 Consent of Mayer, Brown & Platt (included in Exhibit 5.2). 23.4 Consent of Conyers Dill & Pearman (included in Exhibit 5.3) **24.1 Powers of Attorney. 25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Senior Notes of MRM). 25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Senior Notes issued by Mutual Group). 25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Junior Subordinated Notes issued by MRM). 25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Trustee under the Indenture (Junior Subordinated Notes issued by Mutual Group). 25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Property Trustee for the Amended and Restated Trust Agreement of MRM Capital Trust I. 25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Property Trustee for the Amended and Restated Trust Agreement of MRM Capital Trust II. 25.7 Statement of Eligibility, on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Property Trustee for the Amended and Restated Trust Agreement of MRM Capital Trust III. 25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of MRM for the benefit of the holders of Preferred Securities of MRM Capital Trust I. 25.9 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of MRM for the benefit of the holders of Preferred Securities of MRM Capital Trust II. 25.10 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of MRM for the benefit of the holders of Preferred Securities of MRM Capital Trust III. 25.11 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of Mutual Group for the benefit of the holders of Preferred Securities of MRM Capital Trust I. 25.12 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of Mutual Group for the benefit of the holders of Preferred Securities of MRM Capital Trust II. 25.13 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Chase Manhattan Bank, as Guarantee Trustee under the Guarantee Agreement of Mutual Group for the benefit of the holders of Preferred Securities of MRM Capital Trust III.
- -------- * To be filed as an exhibit to a report on Form 8-K pursuant to Item 601 of Regulation S-K **Previously filed II-10 EX-1.1 2 FORM OF UNDERWRITING AGREEMENT Exhibit 1.1 MUTUAL GROUP LTD. Senior Notes Unconditionally Guaranteed by MUTUAL RISK MANAGEMENT LTD. UNDERWRITING AGREEMENT ---------------------- , 2000 PRUDENTIAL SECURITIES INCORPORATED BANC OF AMERICA SECURITIES LLC c/o Prudential Securities Incorporated One New York Plaza New York, New York 10292 Ladies and Gentlemen: Mutual Group Ltd., a Delaware corporation (the "Company"), and Mutual Risk Management Ltd., a Bermuda company (the "Guarantor"), hereby confirm their agreement with the several underwriters named in Schedule 1 hereto (the "Underwriters") for whom you have been authorized to act as representatives (in such capacities, the "Representatives") as set forth below. If you are the only Underwriters, all references herein to the Representatives shall be deemed to be to the Underwriters. 1. Securities. Subject to the terms and conditions herein contained, the ---------- Company proposes to issue and sell to the several Underwriters $_________ aggregate principal amount of its __% Senior Notes due 20___ (the "Securities"), to be issued pursuant to a senior indenture, dated as of __________, 2000 (the "Indenture"), among the Company, as issuer, the Guarantor, as guarantor, and The Chase Manhattan Bank, a New York banking corporation, as trustee (the "Trustee"), as supplemented by a supplemental indenture, to be dated as of __________, 2000 (the "Supplemental Indenture"). The Securities will be fully and unconditionally guaranteed on a senior, unsecured basis by the Guarantor pursuant to the guarantee included in the Indenture and the Securities (the "Guarantee"). 2. Registration Statement. The Company and the Guarantor have filed with ---------------------- the Securities and Exchange Commission (the "Commission") a joint registration statement on Form S-3 (Registration No. 333-96425) and pre-effective Amendment No. 1 thereto, including a prospectus, relating to certain of their debt securities and guarantees of the debt securities of the Company by the Guarantor and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"). As provided in Section 6(a) hereof, a prospectus supplement reflecting the terms of the Securities and the Guarantee, the terms of the offering thereof and the other matters set forth therein has been prepared and will be filed pursuant to Rule 424 under the Act. Such prospectus supplement, in the form first filed after the date hereof pursuant to Rule 424, is herein referred to as the "Prospectus Supplement." Such registration statement, as amended as of the date hereof, including the information, if any, deemed to be a part thereof pursuant to Rule 430A under the Act, the exhibits thereto and the documents incorporated by reference therein, is herein called the "Registration Statement," and the basic prospectus included therein relating to all offerings of securities under the Registration Statement, as supplemented by the Prospectus Supplement, is herein called the "Prospectus," except that, if such basic Prospectus is amended or supplemented on or prior to the date on which the Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall refer to the basic Prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement, in either case including the documents filed by the Company and the Guarantor with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by reference therein. The term "Preliminary Prospectus" shall refer to each basic prospectus or prospectus supplement which is subject to completion. 3. Representations and Warranties of the Company and the Guarantor. The --------------------------------------------------------------- Company and the Guarantor, jointly and severally, represent and warrant to, and agree with, each of the several Underwriters that: (a) The Registration Statement has been declared effective by the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company or the Guarantor, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with or withdrawn. The Company and the Guarantor meet the requirements for use of Form S-3 under the Act and on the original effective date of the Registration Statement, on the effective date of the most recent post-effective amendment thereto, if any, and on the date of the filing by the Company and the Guarantor of any annual report on Form 10-K after the original filing of the Registration Statement, or, if later, any amendment thereto, the Registration Statement complied in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder (the "Regulations"), the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission under the Trust Indenture Act (the "Trust Indenture Act Regulations") and did not contain an untrue statement of a material fact or omit to state a 2 material fact required to be stated therein or necessary to make the statements therein not misleading; on the date hereof and at the Closing Date (as defined below), (A) the Registration Statement and any amendments and supplements thereto, comply and will comply in all material respects with the requirements of the Act, the Regulations, the Trust Indenture Act and the Trust Indenture Act Regulations, (B) neither the Registration Statement nor any amendment or supplement thereto includes or will include an untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) neither any Preliminary Prospectus nor the Prospectus nor any amendment or supplement thereto includes or will include an untrue statement of a material fact or omits or will omit to state a 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 the Company and the Guarantor make no representation or warranty as to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by or on behalf of any Underwriter, directly or through you, expressly for use in the Registration Statement or the Prospectus, or as to statements in the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee filed as an exhibit to the Registration Statement. At the Closing Date, the Indenture will comply in all material respects with the requirements of the Trust Indenture Act and the Trust Indenture Act Regulations. (b) The documents incorporated by reference in the Registration Statement and the Prospectus, at the time they were filed or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder (the "Exchange Act Regulations"), and when read together with the other information in the Prospectus, do not and will not, on the date hereof and at the Closing Date, include 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. (c) The Guarantor and each of its Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X promulgated under the Act) have been duly organized and are validly existing as companies with limited liability or corporations, as the case may be, in good standing under the laws of their respective jurisdictions of incorporation. The Guarantor and its Significant Subsidiaries (including the Company) are duly qualified to transact business as foreign corporations and are in good standing (with respect to jurisdictions that recognize such concept) under the laws of all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, net worth or results of operations of the Guarantor and its Significant Subsidiaries (including the Company), considered as a whole (a "Material Adverse Effect"). The Guarantor and 3 each of its Significant Subsidiaries (including the Company) has full power (corporate and other) to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and the Prospectus or, if the Prospectus is not in existence, the most recent Preliminary Prospectus; and the Company and the Guarantor have full power (corporate and other) to enter into this Agreement, the Indenture and the Supplemental Indenture and to carry out all the terms and provisions hereof and thereof to be carried out by them. (d) Each of the Guarantor and its insurance subsidiaries (including insurance holding companies) is duly registered, licensed or admitted as an insurer or an insurance holding company (if applicable) in each jurisdiction where it is required to be so licensed or admitted to conduct its business as presently conducted, except where the failure to be so registered, licensed or admitted would not result in a Material Adverse Effect; and each of the Guarantor and its insurance subsidiaries (including insurance holding companies) have filed all reports, documents or other information required to be filed under such statutes and regulations, except where the failure to file would not result in a Material Adverse Effect. (e) The Guarantor has an authorized, issued and outstanding capitalization as set forth in the Prospectus or, if the Prospectus is not in existence, the most recent Preliminary Prospectus in the column entitled "Actual" under the caption "Capitalization," except for subsequent issuances thereof, if any, pursuant to employee benefit plans or upon the conversion of convertible securities and except for repurchases of capital stock pursuant to repurchase programs approved by the Guarantor's board of directors. All of the issued shares of capital stock of the Guarantor have been duly authorized and validly issued and are fully paid and nonassessable. The issued shares of capital stock of each of the Guarantor's Significant Subsidiaries (including the Company) have been duly authorized and validly issued, are fully paid and nonassessable and are, directly or indirectly, owned of record and beneficially by the Guarantor, free and clear of any security interests, liens, encumbrances, equities or claims, except as described in or contemplated by the Prospectus or, if the Prospectus is not in existence, the most recent Preliminary Prospectus. No holder of securities has the right to require the Company or the Guarantor, as the case may be, to register such holder's securities under the Act in connection with the Registration Statement and the public offering contemplated by this Agreement. (f) The Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor and, assuming due authorization, execution and delivery by the Trustee, constitutes the legal, valid and binding agreement of each of the Company and the Guarantor, enforceable against each of them in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is 4 considered in a proceeding in equity or at law). The Supplemental Indenture has been duly authorized by each of the Company and the Guarantor and, as of the Closing Date, will have been duly executed and delivered by each of the Company and the Guarantor and, assuming due authorization, execution and delivery by the Trustee, will constitute, the legal, valid and binding agreement of each of the Company and the Guarantor, enforceable against each of them in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Indenture has been qualified under the Trust Indenture Act and, as of the Closing Date, the Indenture, as supplemented by the Supplemental Indenture, will be duly qualified under the Trust Indenture Act. (g) The issuance, execution and delivery of the Securities have been duly authorized by the Company and, as of the Closing Date, the Securities will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be entitled to the benefits of the Indenture. (h) The issuance and delivery of the Guarantee have been duly authorized by the Guarantor and, as of the Closing Date, the Guarantee, when issued and delivered in the manner provided for in the Indenture, will constitute the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture. (i) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor. (j) The statements set forth under the headings "Description of the Senior Notes" and "Description of the Senior Notes and the MRM Senior Note Guarantees" in the 5 Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) are complete and accurate in all material respects. (k) The consolidated financial statements and schedules of the Guarantor and its consolidated subsidiaries (including the financial information regarding the Company included in the notes thereto) included or incorporated by reference in the Registration Statement and the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) fairly present in all material respects the financial position of the Guarantor and its consolidated subsidiaries (including the Company) and the results of operations and cash flows as of the dates and periods therein specified. Such financial statements and schedules have been prepared in accordance with United States generally accepted accounting principles consistently applied throughout the periods involved. The selected financial data and the summary financial data, if any, in the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) fairly present in all material respects, on the basis stated in the Prospectus (or such Preliminary Prospectus), the information included therein and such financial data has been compiled on a basis consistent with the audited consolidated financial statements included or incorporated by reference in the Registration Statement. (l) Ernst & Young, who have certified the consolidated financial statements of the Guarantor and its consolidated subsidiaries and delivered its report with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the Registration Statement and the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus), are independent public accountants as required by the Act, the Regulations, the Exchange Act and the Exchange Act Regulations. (m) No legal or governmental proceedings are pending to which the Guarantor or any of its subsidiaries (including the Company) is a party or to which the property of the Guarantor or any of its subsidiaries (including the Company) is subject that are required to be described in the Registration Statement or the Prospectus and are not described therein (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus), and, to the knowledge of the Company or the Guarantor, no such proceedings have been threatened against the Guarantor or any of its subsidiaries (including the Company) or with respect to any of their respective properties; and no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) or filed as required. (n) The execution and delivery of this Agreement, the Indenture and the Supplemental Indenture, the issuance, offering and sale of the Securities and the Guarantee to the Underwriters pursuant to this Agreement and the use of proceeds as 6 described in the Prospectus, the compliance by the Company and the Guarantor with the provisions of this Agreement, the Securities, the Indenture and the Supplemental Indenture and the consummation of the transactions herein and therein contemplated do not (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority or any court, domestic or foreign, except such as have been obtained and such as may be required under state securities or blue sky laws, or (ii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness or the purchase of any capital stock under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Guarantor or any of its subsidiaries (including the Company) under, any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Guarantor or any of its subsidiaries (including the Company) is a party or by which the Guarantor or any of its subsidiaries (including the Company) or any of their respective assets, properties or operations is subject (except for any conflict, breach, violation, default, right, requirement, creation or imposition that, singly or in the aggregate, would not have a Material Adverse Effect), or the charter documents or by-laws of the Guarantor or any of its subsidiaries (including the Company), or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to the Guarantor or any of its subsidiaries (including the Company). (o) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus), (i) neither the Guarantor nor any of its Significant Subsidiaries (including the Company) has sustained any material loss or material interference with its respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedings, (ii) there has not been any material adverse change in the consolidated reserves for losses and loss adjustment expenses of the Guarantor and its subsidiaries (including the Company) and (iii) there has not been any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth or results of operations of the Guarantor and its subsidiaries (including the Company), considered as whole, except in each case as described in or contemplated by the Prospectus or, if the Prospectus is not in existence, the most recent Preliminary Prospectus. (p) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus), (i) the Guarantor has not purchased any of its outstanding capital stock, except for repurchases of capital stock pursuant to repurchase programs approved by the Guarantor's board of directors; (ii) the Guarantor has not 7 declared, paid or otherwise made any dividend or distribution of any kind on its capital stock, except for regular quarterly dividends; and (iii) there has not been any material change in the short-term debt or long-term debt of the Guarantor or any of its subsidiaries (including the Company) other than in the ordinary course of business consistent with past practice as described in the Prospectus, except in each case described in clauses (i) through (iii) as described in or contemplated by the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus). (q) The Guarantor and its subsidiaries (including the Company) possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to possess any such certificates, authorizations and permits would not, singly or in the aggregate, result in a Material Adverse Effect, and neither the Guarantor nor any subsidiary (including the Company) has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect, except as described in or contemplated by the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus). (r) The Guarantor and each of its subsidiaries (including the Company) conduct their respective operations in a manner that does not subject it or them to registration as an investment company under the Investment Company Act of 1940, as amended, and the transactions contemplated hereby will not cause the Guarantor or any of its subsidiaries (including the Company) to become an investment company subject to registration thereunder. (s) Each of the Guarantor and its subsidiaries (including the Company) have filed all foreign, federal, state and local tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect) and have paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as described in or contemplated by the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus). (t) The Guarantor and each of its subsidiaries (including the Company) maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with 8 management's general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (u) Neither the Guarantor nor any of its subsidiaries (including the Company) is in violation of its charter, by-laws or other organizational documents. No default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Guarantor or any of its subsidiaries (including the Company) is a party or by which the Guarantor or any of its subsidiaries (including the Company) or any of their respective properties is bound or may be affected in any respect that could have a Material Adverse Effect. (v) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, or if the Prospectus is not in existence, the most recent Preliminary Prospectus, there has not been any downgrading in (i) the rating for financial strength or claims paying ability of the Guarantor or any of its subsidiaries (including the Company) or (ii) the rating of any of the Guarantor's securities or the securities of any of its subsidiaries (including the Company), nor has there been any action threatening such a downgrading or placing the Guarantor or any of its subsidiaries (including the Company) under special surveillance by any "nationally recognized statistical rating organization" (as defined in Rule 436(g) under the Act) (each, a "Rating Organization"); nor does the Company or the Guarantor have any knowledge of any facts or circumstances that are likely to cause such downgrading, threatened downgrading or the placing the Guarantor or any of its subsidiaries (including the Company) under such surveillance. (w) Under current laws and regulations of Bermuda and any political subdivision thereof, all interest payable on the Securities may be paid by the Guarantor pursuant to the Guarantee to the record and beneficial owners thereof in United States dollars and freely transferred out of Bermuda and all such payments made to holders thereof or therein who are non-residents of Bermuda will not be subject to income, withholding or other taxes under laws and regulations of Bermuda or any political subdivision or taxing authority thereof or therein and will otherwise be free and clear of any other tax, duty, withholding or deduction in Bermuda or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining any governmental authorization in Bermuda or any political subdivision or taxing authority thereof or therein. (x) The description of the Guarantor's and its subsidiaries' reserves and reserving methodology and assumptions described in the Prospectus is accurate in all material respects and fairly presents the information set forth therein in all material respects and, 9 since the date of the latest financial statements included in the Prospectus, no loss experience has developed which would require or make it appropriate for the Guarantor or any of its subsidiaries to alter or modify such methodology. (y) No authorization, approval or consent of any governmental authority or agency is required (other than any license as an insurer or insurance holding company and other than those which have already been obtained) under the laws of any jurisdiction in which the Guarantor or any of its subsidiaries (including the Company) conduct their respective businesses in connection with the ownership, directly or indirectly, by the Guarantor of equity interests in any subsidiary (including the Company) or the repatriation of any amount from or to the Guarantor or any of its subsidiaries (including the Company), except to the extent that the failure to obtain such authorization, approval or consent would not result in a Material Adverse Effect. (z) Neither the Company nor the Guarantor has, directly or indirectly, taken any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Guarantor or the Company to facilitate the sale or resale of the Securities. Each certificate signed by any officer of the Company or the Guarantor and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty as of the date of such certificate by the Company or the Guarantor, as the case may be, to each Underwriter as to the matters covered thereby. 4. Purchase, Sale and Delivery of the Securities. --------------------------------------------- (a) On the basis of the representations, warranties, agreements and covenants herein contained and 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, severally and not jointly, agrees to purchase from the Company, the principal amount of Securities set forth opposite the name of such Underwriter in Schedule 1 hereto at an aggregate purchase price of $__________, plus accrued interest, if any, from __________ to the date of delivery of the Securities. One or more certificates in definitive form for the Securities that the several Underwriters have agreed to purchase hereunder, and in such denomination or denominations and registered in such name or names as the Underwriters request upon notice to the Company at least 48 hours prior to the Closing Date, shall be delivered by or on behalf of the Company to the Underwriters, against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer of immediately available funds to a bank account designated by the Company. Such delivery of and payment for the Securities shall be made at the offices of Debevoise & Plimpton, 875 Third Avenue, New York, New York 10022 at 9:30 a.m., New York time, on May __, 2000, or at such other place, time or date as the Underwriters and the 10 Company may agree upon or as the Underwriters may determine pursuant to Section 10 hereof, such time and date of delivery against payment being herein referred to as the "Closing Date." The Company will make such certificate or certificates for the Securities available for checking and packaging by the Underwriters at the offices in New York, New York of the Trustee or of Prudential Securities Incorporated at least 24 hours prior to the Closing Date. (b) It is understood that you, individually and not as one of the Underwriters, may (but shall not be obligated to) make payment on behalf of any Underwriter or Underwriters for any of the Securities to be purchased by such Underwriter or Underwriters. No such payment shall relieve such Underwriter or Underwriters from any of its or their obligations hereunder. 5. Offering by the Underwriters. Upon your authorization of the release ---------------------------- of the Securities, the several Underwriters shall offer the Securities for sale to the public upon the terms set forth in the Prospectus. 6. Covenants of the Company and the Guarantor. The Company and the ------------------------------------------ Guarantor, jointly and severally, covenant and agree with each of the Underwriters that: (a) Immediately following the execution of this Agreement, the Company and the Guarantor will prepare a Prospectus Supplement that complies with the Act and the Regulations and that sets forth the principal amount of the Securities and their material terms, the name of each Underwriter participating in the offering and the principal amount of the Securities that each severally has agreed to purchase, the price at which the Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the Act. (b) During the period when the Prospectus is required by the Act to be delivered in connection with the sale of the Securities, the Company and the Guarantor will, subject to Section 6(c) hereof, file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act. (c) During the period when the Prospectus is required by the Act to be delivered in connection with the sale of the Securities, the Company and the Guarantor will inform you of their intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such 11 amendment, supplement or other document a reasonable time in advance of filing and will not file any such amendment, supplement or other document in a form to which you shall reasonably object. (d) The Company and the Guarantor will advise the Representatives, promptly after receiving notice or obtaining knowledge thereof, of (i) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (ii) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, (iii) the institution, threatening or contemplation of any proceeding for any such purpose or (iv) any request made by the Commission for amending the Registration Statement, for amending or supplementing any Preliminary Prospectus or the Prospectus or for additional information. The Company and the Guarantor will use all commercially reasonable efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible. (e) The Company and the Guarantor will use all commercially reasonable efforts to arrange for the qualification of the Securities for offering and sale under the securities or blue sky laws of such jurisdictions as the Underwriters may designate and to continue such qualifications in effect for as long as may be necessary to complete the distribution of the Securities, provided, however, that in connection therewith the Company and the Guarantor shall not be required to qualify as a foreign corporation or a dealer in securities, to execute a general consent to service of process or to subject itself to taxation in any jurisdiction. (f) If, at any time prior to the later of (i) the final date when a Prospectus relating to the Securities is required to be delivered under the Act or (ii) the Closing Date, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Trust Indenture Act or the respective rules or regulations of the Commission thereunder, the Company and the Guarantor will promptly notify the Underwriters thereof and, subject to Section 6(c) hereof, will prepare and file with the Commission, at the Company's and the Guarantor's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance. 12 (g) The Company and the Guarantor will, without charge, provide (i) to the Underwriters and to counsel for the Underwriters a signed copy of the registration statement originally filed with respect to the Securities and each amendment thereto (in each case including exhibits thereto), (ii) to each other Underwriter a conformed copy of such registration statement and each amendment thereto (in each case without exhibits thereto) and (iii) so long as a Prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request; without limiting the application of clause (iii) of this sentence, the Company and the Guarantor, not later than 6:00 PM, New York City time, on the business day following the date of determination of the public offering price, will deliver to the Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Underwriters may reasonably request for purposes of confirming orders that are expected to settle on the Closing Date. The copies of any Preliminary Prospectus and Prospectus furnished to the Underwriters will be identical to the electronically transmitted copies filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (h) The Guarantor, as soon as practicable, will make generally available to its security holders and to the Underwriters a consolidated earnings statement of the Guarantor and its subsidiaries that satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder. (i) The Company will apply the net proceeds from the sale of the Securities as set forth in the Prospectus under the heading "Use of Proceeds". (j) The Company and the Guarantor will not, directly or indirectly, without the prior written consent of Prudential Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to sell, contract to sell, grant any option to purchase or otherwise transfer or dispose (or announce any offer, transfer, offer of sale, contract of sale, grant of any option to purchase or other sale or disposition) of any debt securities of the Company or the Guarantor that are substantially similar to the Securities during the period commencing on the date hereof and terminating on the earlier of (a) the Closing Date and (b) the date of notice to the Company and the Guarantor by the Underwriters of the termination of trading restrictions with respect to the Securities, except pursuant to this Agreement. (k) The Company and the Guarantor will not, directly or indirectly, (i) take any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company or the Guarantor to facilitate the sale or resale of the Securities or (ii) except pursuant to this Agreement (A) sell, bid for, purchase, or pay anyone any 13 compensation for soliciting purchases of, the Securities or (B) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company or the Guarantor. (l) The Company and the Guarantor will, jointly and severally, indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Securities and on the execution and delivery of this Agreement. All payments to be made by the Company or the Guarantor hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company or the Guarantor is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company or the Guarantor shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made. 7. Expenses. The Company and the Guarantor will, jointly and severally, -------- pay all costs and expenses incident to the performance of their obligations under this Agreement, whether or not the transactions contemplated herein are consummated or this Agreement is terminated pursuant to Section 12 hereof, including all costs and expenses incident to (a) the printing or other production of documents with respect to the transactions, including any costs of printing the registration statement originally filed with respect to the Securities and any amendment thereto, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, the Indenture, the Supplemental Indenture, this Agreement and any blue sky memoranda, (b) all arrangements relating to the delivery to the Underwriters of copies of the foregoing documents, (c) the fees and disbursements of the counsel, the accountants and any other experts or advisors retained by the Company and the Guarantor, (d) preparation, issuance and delivery to the Underwriters of any certificates evidencing the Securities, including transfer agent's and registrar's fees, (e) the qualification of the Securities under state securities and blue sky laws, including filing fees and reasonable fees and disbursements of counsel for the Underwriters relating thereto, (f) the fees and disbursements of the Trustee, (g) the filing fees of the Commission relating to the Securities, (h) any meetings with prospective investors in the Securities (other than as shall have been specifically approved by the Underwriters to be paid for by the Underwriters), (i) any fees charged by investment rating agencies for the rating of Securities and (j) the fees associated with any listing of the Securities on any securities exchange. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 8 hereof is not satisfied, because this Agreement is terminated pursuant to Section 12(a)(i) hereof or because of any failure, refusal or inability on the part of the Company or the Guarantor to perform all obligations and satisfy all conditions on its part to be performed or satisfied 14 hereunder other than by reason of a default by any of the Underwriters, the Company and the Guarantor, jointly and severally, will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including fees and disbursements of counsel) that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities. The Company and the Guarantor shall not in any event be liable to any of the Underwriters for the loss of anticipated profits from the transactions covered by this Agreement. 8. Conditions of the Underwriters' Obligations. The obligations of the ------------------------------------------- several Underwriters to purchase and pay for the Securities shall be subject, in the Underwriters' sole discretion, to the accuracy of the representations and warranties of the Company and the Guarantor contained herein as of the date hereof and as of the Closing Date, as if made as of the Closing Date, to the accuracy of the statements of the Company's and Guarantor's officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their covenants and agreements hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement shall have been issued, and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, the Guarantor or the Underwriters, shall be threatened or contemplated by the Commission; and the Company and the Guarantor shall have complied with any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise). (b) The Underwriters shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the Representatives, of Mayer, Brown & Platt, United States counsel for the Company, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Underwriters may reasonably request. (c) The Underwriters shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the Representatives, of Richard O'Brien, General Counsel of the Guarantor and the Company, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Underwriters may reasonably request. (d) The Underwriters shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the Representatives, of Conyers Dill & 15 Pearman, Bermuda counsel for the Guarantor, to the effect set forth in Exhibit C hereto and to such further effect as counsel to the Underwriters may reasonably request. (e) The Underwriters shall have received an opinion, dated the Closing Date, of Debevoise & Plimpton, counsel for the Underwriters, with respect to the issuance and sale of the Securities and the Guarantee, the Registration Statement and the Prospectus, and such other related matters as the Underwriters may reasonably require, and the Company and the Guarantor shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (f) The Underwriters shall have received from Ernst & Young a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus. (g) The Underwriters shall have received a certificate, dated the Closing Date, of the principal executive officer and the principal financial or accounting officer of the Company to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made as of the Closing Date, the Registration Statement, as amended as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented as of the Closing Date, does 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 the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and no proceedings for that purpose have been instituted or, to the best of the Company's knowledge, are threatened or contemplated by the Commission; and (iii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) neither the Company nor any of its subsidiaries have sustained any material loss or material interference with their respective businesses or properties from fire, flood, hurricane, accident or other 16 calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (ii) there has not been any material adverse change in the reserves for losses and loss adjustment expenses of the Company and its subsidiaries and (iii) there has not been any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth or results of operations of the Company and its subsidiaries, considered as a whole, except in each case as described in or contemplated by the Prospectus (exclusive of any amendment or supplement thereto). (h) The Underwriters shall have received a certificate, dated the Closing Date, of the principal executive officer and the principal financial or accounting officer of the Guarantor to the effect that: (i) the representations and warranties of the Guarantor in this Agreement are true and correct as if made as of the Closing Date, the Registration Statement, as amended as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented as of the Closing Date, does 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 the Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued, and no proceedings for that purpose have been instituted or, to the best of the Guarantor's knowledge, are threatened or contemplated by the Commission; and (iii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) neither the Guarantor nor any of its subsidiaries have sustained any material loss or material interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (ii) there has not been any material adverse change in the reserves for losses and loss adjustment expenses of the Guarantor and its subsidiaries (including the Company) and (iii) there has not been any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth or results of operations of the Guarantor and its subsidiaries, 17 considered as a whole, except in each case as described in or contemplated by the Prospectus (exclusive of any amendment or supplement thereto). (i) On the Closing Date, the Securities shall have ratings of no lower than BBB+ and Baa2 accorded by Standard & Poor's Ratings Service (or any successor to the rating agency business thereof) or Moody's Investors Service, Inc. (or any successor to the rating agency business thereof), and the Company and the Guarantor shall have delivered to the Representatives a letter, dated as of such date, from each such rating organization, or other evidence satisfactory to the Representatives, confirming that the Securities have such ratings. Since the date of execution of this Agreement, there shall not have occurred any downgrading in, or withdrawal of, the rating assigned to any of the Guarantor's or any of its subsidiaries' securities or the Guarantor's or any of its subsidiaries' financial strength or claims paying ability by any Rating Organization, and no Rating Organization shall have publicly announced it has under surveillance or review with negative implications its rating of any of the Guarantor's or any of its subsidiaries' securities or the Guarantor's or any of its subsidiaries' financial strength or claims paying ability. (j) On the Closing Date, the Securities have been approved for listing, subject only to official notice of issuance of the securities exchanges, if any, specified in the applicable Prospectus Supplement. (k) On or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such further certificates, documents or other information as they may have reasonably requested from the Company and the Guarantor. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Underwriters and counsel for the Underwriters. The Company and the Guarantor shall furnish to the Underwriters such originals and conformed copies of such opinions, certificates, letters and documents in such quantities as the Underwriters and counsel for the Underwriters shall reasonably request. 9. Indemnification and Contribution. -------------------------------- (a) The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or such controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: 18 (i) any untrue statement or alleged untrue statement made by the Company or the Guarantor in Section 3 of this Agreement, (ii) any untrue statement or alleged untrue statement of any material fact contained in (A) the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or (B) any application or other document, or any amendment or supplement thereto, executed by the Company or the Guarantor or based upon written information furnished by or on behalf of the Company or the Guarantor filed in any jurisdiction in order to qualify the Securities under the securities or blue sky laws thereof or filed with the Commission or any securities association or securities exchange (each an "Application") or (iii) the omission or alleged omission to state in the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or any Application a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse, as incurred, each Underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, that the Company and the Guarantor will not be liable in any such case to the extent that any such loss, claim, damage or liability (i) arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement or any amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or any Application in reliance upon and in conformity with written information furnished to the Company or the Guarantor by such Underwriter through the Representatives specifically for use therein and (ii) with respect to any Preliminary Prospectus to the extent that the Company and the Guarantor shall sustain the burden of proving that any such loss, claim, damage or liability of such Underwriter resulted solely from the fact that such Underwriter, in contravention of a requirement of this Agreement or applicable law, sold Securities to a person to whom such Underwriter failed to send or give, at or prior to the written confirmation of sale, a copy of the Prospectus as, if applicable, amended or supplemented if the Company has previously furnished copies thereof (sufficiently in advance of the Closing Date to allow for distribution by the Closing Date) to such Underwriter and the loss, liability, claim, damage or expense of such Underwriter resulted from an untrue statement or omission of a material fact contained in or omitted from the Preliminary Prospectus that was corrected in the Prospectus as, if applicable, amended or supplemented prior to the Closing Date and such Prospectus was required by law to be delivered at or prior to the written 19 confirmation of sale to such person. This indemnity agreement will be in addition to any liability which the Company or the Guarantor may otherwise have. The Company and the Guarantor will not, without the prior written consent of the indemnified parties under this Section 9(a), settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not the indemnified parties are parties to such claim, action, suit or proceeding), unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company, the Guarantor, each of their directors, each of their officers who signed the Registration Statement, and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company or the Guarantor, any such director, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or any amendment thereto, any Preliminary Prospectus or Prospectus or any amendment or supplement thereto, or any Application or (ii) the omission or alleged omission to state therein a material fact required to be stated in the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or any Application 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 reliance upon and in conformity with written information furnished to the Company or the Guarantor by such Underwriter through the Representatives specifically for use therein; and, subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company or the Guarantor or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability or any action in respect thereof. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party of the commencement thereof; but the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 9. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the 20 commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 9 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Underwriters in the case of paragraph (a) of this Section 9, representing the indemnified parties under such paragraph (a) who are parties to such action or actions), (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory to the indemnified party or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the consent of the indemnifying party. (d) In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 9 is unavailable or insufficient, for any reason, to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, 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 (i) the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the offering of the Securities or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified 21 party on the other in connection with the statements or omissions or alleged statements or omissions that 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 and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total proceeds from the offering (before deducting expenses) received by the Company and the Guarantor bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault of the parties 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 and the Guarantor or the Underwriters, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, and any other equitable considerations appropriate in the circumstances. The Company, the Guarantor and the Underwriters agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to above in this paragraph (d). Notwithstanding any other provision of this paragraph (d), no Underwriter shall be obligated to make contributions hereunder that in the aggregate exceed the total public offering price of the Securities purchased by such Underwriter under this Agreement, less the aggregate amount of any damages that such Underwriter has otherwise been required to pay in respect of the same or any substantially similar claim, and 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 to contribute hereunder are several in proportion to their respective underwriting obligations and not joint, and contributions among Underwriters shall be governed by the provisions of the Prudential Securities Incorporated Master Agreement Among Underwriters. For purposes of this paragraph (d), each person, if any, who controls an Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company or the Guarantor, each officer of the Company or the Guarantor who signed the Registration Statement and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Company and the Guarantor. (e) The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions of this Agreement, including, without limitation, the provisions of this Section 9, and are fully informed regarding said provisions. They further acknowledge that the provisions of this Section 9 fairly allocate the risks in light of the ability of the parties to investigate the Company, the Guarantor and their respective businesses in order 22 to assure that adequate disclosure is made in the Registration Statement and Prospectus as required by the Act. The parties are advised that federal or state policy, as interpreted by the courts in certain jurisdictions, may be contrary to certain provisions of this Section 9, and the parties hereto hereby expressly waive and relinquish any right or ability to assert such public policy as a defense to a claim under this Section 9 and further agree not to attempt to assert any such defense. 10. Default of Underwriters. If one or more Underwriters default in their ----------------------- obligations to purchase Securities hereunder and the aggregate principal amount of such Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase is ten percent or less of the aggregate principal amount of Securities to be purchased by all of the Underwriters at such time hereunder, the other Underwriters may make arrangements satisfactory to the Underwriters for the purchase of such Securities by other persons (who may include one or more of the non-defaulting Underwriters), but if no such arrangements are made by the Closing Date, the other Underwriters shall be obligated severally in proportion to their respective commitments hereunder to purchase the Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase. If one or more Underwriters so defaults with respect to an aggregate principal amount of Securities that is more than ten percent of the aggregate principal amount of Securities to be purchased by all of the Underwriters at such time hereunder, and if arrangements satisfactory to the Underwriters are not made within 36 hours after such default for the purchase by other persons (who may include one or more of the non-defaulting Underwriters) of the Securities with respect to which such default occurs, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company or the Guarantor other than as provided in Section 11 hereof. In the event of any default by one or more Underwriters as described in this Section 10, the Underwriters shall have the right to postpone the Closing Date established as provided in Section 4 hereof for not more than seven business days in order that any necessary changes may be made in the arrangements or documents for the purchase and delivery of the Securities. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter under this Section 10. Nothing herein shall relieve any defaulting Underwriter from liability for its default. 11. Survival. The respective representations, warranties, agreements, -------- covenants, indemnities and other statements of the Company, the Guarantor, their officers, and the several Underwriters 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 (i) any investigation made by or on behalf of the Company, the Guarantor, any of their officers or directors, any Underwriter or any controlling person referred to in Section 9 hereof and (ii) delivery of and payment for the Securities. The respective representations, agreements, indemnities and other statements set forth in Sections 3, 7 23 and 9 and this Section 11 hereof shall remain in full force and effect, regardless of any termination or cancellation of this Agreement. 12. Termination. ----------- (a) This agreement may be terminated with respect to the Securities in the sole discretion of the Representatives by notice to the Company and the Guarantor given prior to the Closing Date, in the event that the Company or the Guarantor shall have failed, refused or been unable to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder at or prior thereto or, if at or prior to the Closing Date, (i) The Guarantor or any of its subsidiaries (including the Company) shall have, in the sole judgment of the Underwriters, sustained any material loss or material interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, or there shall have been any material adverse change in the consolidated reserves for losses and loss adjustment expenses of the Guarantor and its subsidiaries (including the Company) or there shall have been any material adverse change, or any development involving a prospective material adverse change (including without limitation a change in management or control of the Company or the Guarantor), in the condition (financial or otherwise), business, net worth or results of operations of the Guarantor and its subsidiaries (including the Company), considered as a whole, except in each case as described in or contemplated by the Prospectus (exclusive of any amendment or supplement thereto) which makes it impracticable or inadvisable to proceed with the completion of the offering of the Securities; (ii) trading in the Guarantor's common shares shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange or Nasdaq National Market shall have been suspended or minimum or maximum prices shall have been established on either such exchange or market system; (iii) a banking moratorium shall have been declared by United States Federal, New York or Bermuda authorities; or (iv) there shall have been (A) an outbreak or escalation of hostilities between the United States and any foreign power, (B) an outbreak or escalation of any other insurrection or armed conflict involving the United States or (C) any other calamity or crisis or material adverse change in general economic, political 24 or financial conditions having an effect on the financial markets or the market for the Securities that, in the sole judgment of the Underwriters, makes it impractical or inadvisable to proceed with the public offering or the delivery of the Securities as contemplated by the Registration Statement, as amended as of the date hereof. (b) Termination of this Agreement pursuant to this Section 12 shall be without liability of any party to any other party except as provided in Section 7 hereof. 13. Information Supplied by Underwriters. The statements under the ------------------------------------ heading "Underwriting" in, and the last sentence on the cover page of, the Preliminary Prospectus or the Prospectus (to the extent such statements relate to any of the Underwriters) constitute the only information furnished by any Underwriter to the Company or the Guarantor for the purposes of Sections 3(a) and 9 hereof. 14. Notices. All communications hereunder shall be in writing and, if ------- sent to any of the Underwriters, shall be delivered or sent by mail, telex or facsimile transmission and confirmed in writing to Prudential Securities Incorporated, One New York Plaza, New York, New York 10292, Attention: Debt Origination Group; and if sent to the Company or the Guarantor, shall be delivered or sent by mail, telex or facsimile transmission and confirmed in writing to the Company and the Guarantor at One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, Attention: Richard O'Brien (facsimile number 215-263-1610). 15. Successors. This Agreement shall inure to the benefit of and shall be ---------- binding upon the several Underwriters, the Company, the Guarantor and their respective successors and legal representatives, and nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person except that (i) the indemnities of the Company and the Guarantor contained in Section 9 of this Agreement shall also be for the benefit of any person or persons who control any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the Underwriters contained in Section 9 of this Agreement shall also be for the benefit of the directors of the Company and the Guarantor, the officers of the Company and the Guarantor who have signed the Registration Statement and any person or persons who control the Company or the Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of Securities from any Underwriter shall be deemed a successor because of such purchase. 25 16. Consent to Jurisdiction; Miscellaneous. Each of the parties hereto -------------------------------------- expressly and irrevocably submits to the non-exclusive jurisdiction of any competent court in the place of its domicile and any United States Federal or New York State court sitting in the Borough of Manhattan in The City of New York in any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby to the extent that such court has subject matter jurisdiction over the controversy, and expressly and irrevocably waives, to the extent permitted under applicable law, any immunity from the jurisdiction thereof and any claim or defense in such action, suit or proceeding based on a claim of improper venue, forum non conveniens or any similar basis to which it might otherwise be entitled in any such action, suit or proceeding. Each of the Company and the Guarantor irrevocably appoints CT Corporation as its authorized agent in the Borough of Manhattan in The City of New York upon which process may be served in any such action, suit or proceeding, and agrees that service of process upon such agent, and written notice of said service of process to the Company or the Guarantor by the person serving the same to the address provided in Section 14, shall be deemed in every respect effective service of process upon the Company or the Guarantor, as the case may be, in such action, suit or proceeding. Each of the Company and the Guarantor further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of two years from the date of this Agreement 17. Waiver of Immunities. To the extent that the Company or the Guarantor -------------------- or any of their respective properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commended, with respect to their obligations, liabilities or any other matter under or arising out of or in connection with this Agreement or any additional agreement, each of the Company and the Guarantor hereby irrevocably and unconditionally, to the extent permitted by applicable law, waives and agrees not to plead or claim any such immunity and consents to such relief and enforcement. 26 18. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, -------------- AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLE OR RULES OF CONFLICTS OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. 19. Counterparts. This Agreement may be executed in two or more ------------ counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 27 If the foregoing correctly sets forth our understanding, please indicate your acceptance thereof in the space provided below for that purpose, whereupon this letter shall constitute an agreement binding the Company, the Guarantor and each of the several Underwriters. Very truly yours, MUTUAL GROUP LTD. By: ______________________________ Name: Title: MUTUAL RISK MANAGEMENT LTD. By: ______________________________ Name: Title: The foregoing Agreement is hereby confirmed and accepted as of the date first above written. PRUDENTIAL SECURITIES INCORPORATED BANC OF AMERICA SECURITIES LLC By: PRUDENTIAL SECURITIES INCORPORATED By: _________________________ Name: Title: For itself and on behalf of the Underwriters SCHEDULE 1 UNDERWRITERS
Underwriter Principal Amount - ----------- ---------------- Prudential Securities Incorporated $ Banc of America Securities LLC $ Total $
Exhibit A FORM OF OPINION OF MAYER, BROWN & PLATT, UNITED STATES COUNSEL FOR THE COMPANY AND THE GUARANTOR, TO BE DELIVERED PURSUANT TO SECTION 8(b) (i) The Company has been duly incorporated and each of the Company and its Significant Subsidiaries is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. (ii) Each of the Company and its Significant Subsidiaries has full corporate power to own or lease its respective properties and conduct its respective businesses as described in the Registration Statement and the Prospectus. The Company has full corporate power to enter into the Underwriting Agreement, the Indenture and the Supplemental Indenture and to carry out all terms and provisions thereof to be carried out by it. (iii) The execution and delivery by each of the Company and the Guarantor of, and the performance by each of the Company and the Guarantor of its obligations under, the Underwriting Agreement, the Indenture and the Supplemental Indenture and the consummation by each of the Company and the Guarantor of the transactions contemplated by the Underwriting Agreement, the Indenture and the Supplemental Indenture do not and will not (A) contravene any provision of any United States federal or New York or Delaware (for this purpose, the Delaware General Corporation Law) law, rule or regulation, in each case which, in such counsel's opinion, based on such counsel's experience, are normally applicable to transactions of the type contemplated by the Underwriting Agreement ("United States Applicable Laws"), except that such counsel need not express any opinion in this paragraph with respect to state securities or insurance laws; (B) contravene any judgment, order or decree known to such counsel without independent inquiry of any United States federal, New York or Delaware court or governmental agency or body having jurisdiction over the Guarantor or any of its subsidiaries or by which the Guarantor or any of its subsidiaries is bound or by which their properties or assets may be affected; (C) conflict with or result in any breach or violation of the certificate of incorporation or by-laws of the Company or its Significant Subsidiaries, except for such conflicts, breaches, violations, defaults, accelerations, repayments, repurchases, liens, charges or encumbrances that would not singly and in the aggregate result in a Material Adverse Effect; or (D) based upon such counsel's review of the United States Applicable Laws, require any consent, approval or authorization or order of, or qualification with, any United States federal or state governmental agency or authority or court, except such as have been obtained under the Act, the Regulations, the Trust Indenture Act and the Trust Indenture Act Regulations and such as may be required under state securities or blue sky laws or state insurance A-1 laws in connection with the offer and sale of the Securities (as to which such counsel need express no opinion). (iv) The Underwriting Agreement has been duly authorized, executed and delivered by the Company. (v) The Securities have been duly authorized, executed and delivered by the Company for issuance and sale pursuant to the Underwriting Agreement. (vi) The Securities, when issued and authenticated in the manner provided for in the Indenture and the Supplemental Indenture and delivered against payment of the consideration therefor specified in the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law). The Securities are in the form contemplated by, and each registered holder thereof is entitled to the benefits of, the Indenture and the Supplemental Indenture. (vii) Assuming the Guarantee has been duly authorized by the Guarantor for issuance and sale pursuant to the Underwriting Agreement, the Guarantee, when duly issued and delivered in the manner contemplated in the Indenture and the Supplemental Indenture and issued and delivered to the Underwriters in accordance with the provisions of the Underwriting Agreement, will constitute a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law). (viii) The Indenture and the Supplemental Indenture have been duly authorized, executed and delivered by the Company and, assuming the Indenture and the Supplemental Indenture have been duly authorized, executed and delivered by the Guarantor and by the applicable Trustee, the Indenture and the Supplemental Indenture constitute legal, valid and binding agreements of each of the Company and the Guarantor, enforceable against each of the Company and the Guarantor in accordance with their terms, except as the enforcement thereof may A-2 be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law). (ix) The Securities, the Guarantee, the Indenture and the Supplemental Indenture conform in all material respects to the descriptions thereof contained in the Prospectus and are in substantially the form filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement. (x) The Registration Statement and the Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement to the Registration Statement and Prospectus, excluding the documents incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements and supporting schedules and other financial data included therein or omitted therefrom and each Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Act and the Regulations. (xi) The documents incorporated by reference in the Prospectus (other than the financial statements and supporting schedules and other financial data included therein or omitted therefrom, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act, the Regulations, the Exchange Act and the Exchange Act Regulations, as applicable. (xii) The Indenture and the Supplemental Indenture have been duly qualified under the Trust Indenture Act. (xiii) The Company is not, and upon the issuance and sale of the Securities and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" within the meaning of the Investment Company Act of 1940, as amended. Such counsel shall also state that it has been advised by the Commission that the Registration Statement became effective under the Act; that any required filings of the Prospectus pursuant to Rule 424(b) have been made in the manner and within the time period required by Rule 424(b); and that, based solely on conversations with the Commission, no stop order suspending the effectiveness of the Registration Statement A-3 has been issued and no proceedings for the purpose have been instituted, are pending or, to such counsel's knowledge, are contemplated under the Act. Such counsel shall also state that they have examined various documents and participated in conferences with representatives of the Company and the Guarantor and their accountants and with representatives of the Representatives and their counsel at which times the contents of the Registration Statement and the Prospectus and related matters were discussed, and that, although they are not passing upon and assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus or making any representation that they have independently verified or checked the accuracy, completeness or fairness of such statements, except as set forth in paragraphs (ix), (x) and (xi) above, no facts have come to such counsel's attention that cause such counsel to believe that the Registration Statement or any post-effective amendment thereto, at the time the Registration Statement or any post-effective amendment thereto became effective, contained any 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; or that the Prospectus or any amendment or supplement thereto, at the date of the Prospectus, at the date of any such amendment or supplement or on the Closing Date, included or includes any untrue statement of a material fact or omitted or omits 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 (such counsel need not express a belief with respect to the financial statements and supporting schedules and other financial data included in or omitted from the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto). A-4 Exhibit B FORM OF OPINION OF RICHARD O'BRIEN, ESQ., GENERAL COUNSEL OF THE GUARANTOR, TO BE DELIVERED PURSUANT TO SECTION 8(c) (i) Each of the Guarantor, the Company and their Significant Subsidiaries is qualified to transact business and is in good standing (with respect to jurisdictions which recognize such concept) as a foreign corporation, in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing (with respect to jurisdictions which recognize such concept) would not, singly and in the aggregate, result in a Material Adverse Effect. (ii) The issued shares of capital stock of each of the Company and its Significant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, to the best knowledge of such counsel, are owned of record directly by the Guarantor or the Company, as the case may be, free and clear of any security interests, liens, encumbrances, equities or claims, except as described in or contemplated by the Prospectus; (iii) Such counsel does not know of any (A) action, suit or proceeding before or by any government, governmental instrumentality or court now pending or threatened against or affecting the Guarantor or any of its subsidiaries (including the Company) or any of their respective assets or properties that is required to be described in the Registration Statement or the Prospectus and is not so described or (B) which, if determined adversely to the Guarantor or such subsidiary, would result in a Material Adverse Effect or (B) of any contract or other document that is required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit to the Registration Statement, that is not described or filed, as required. (iv) The execution and delivery by each of the Company and the Guarantor of, and the performance by each of the Company and the Guarantor of its obligations under, the Underwriting Agreement, the Indenture and the Supplemental Indenture and the consummation by each of the Company and the Guarantor of the transactions contemplated by the Underwriting Agreement, the Indenture and the Supplemental Indenture do not and will not contravene any provision of law, rule or regulation known to such counsel applicable to the Guarantor or any of its subsidiaries, except that such counsel need not express any opinion in this paragraph with respect to state securities laws; (B) contravene any judgment, order or decree known to such counsel of any court or governmental agency or body having jurisdiction over the Guarantor or any of its subsidiaries or B-1 by which the Guarantor or any of its subsidiaries is bound or by which their properties or assets may be affected; (C) conflict with, result in any breach or violation of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness or the purchase of any capital stock under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Guarantor or any of its subsidiaries, pursuant to the terms of, any agreement or instrument to which the Guarantor or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the assets, properties or operations of the Guarantor or any of its subsidiaries is subject, except for such conflicts, breaches, violations, defaults, accelerations, repayments, repurchases, liens, charges or encumbrances that would not singly and in the aggregate result in a Material Adverse Effect; or (D) require any consent, approval or authorization or order of, or qualification with, any governmental agency or authority or court under state insurance laws; and (v) Neither the Guarantor nor any of its subsidiaries (including the Company) is in violation of its charter, by-laws or other organizational documents. No default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, lease or other agreement or instrument, to which the Guarantor or any of its subsidiaries (including the Company) is a party or by which the Guarantor or any of its subsidiaries (including the Company) or any of their respective properties is bound or may be affected which would have a Material Adverse Effect. Such counsel shall also state that he has examined various documents and participated in conferences with representatives of the Company and the Guarantor and their accountants and with representatives of the Representatives and their counsel at which times the contents of the Registration Statement and the Prospectus and related matters were discussed, and that, although he is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus or making any representation that he has independently verified or checked the accuracy, completeness or fairness of such statements, except as set forth above, no facts have come to his attention that cause him to believe that the Registration Statement or any post-effective amendment thereto, at the time the Registration Statement or any post-effective amendment thereto became effective or as of the date of Underwriting Agreement, contained any 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; or that the Prospectus or any amendment or supplement thereto, at the date of the Prospectus, at the date of any such amendment or B-2 supplement or on the Closing Date, included or includes any untrue statement of a material fact or omitted or omits 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 (such counsel need not express a belief with respect to the financial statements and supporting schedules and other financial data included in or omitted from the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto). B-3 Exhibit C FORM OF OPINION OF CONNERS DILL & PEARMAN, GUARANTOR'S BERMUDA COUNSEL, TO BE DELIVERED PURSUANT TO SECTION 8(d) May [ ], 2000 Prudential Securities Incorporated and the Several Underwriters named in Schedule 1 to the Underwriting Agreement (as hereinafter defined) c/o Prudential Securities Incorporated One New York Plaza New York, New York 10292 USA Dear Sirs Mutual Risk Management Ltd. (the "Guarantor") We have acted as special legal counsel in Bermuda to the Guarantor, a Bermuda exempted company, in connection with the Underwriting Agreement dated as of May [ ], 2000 (the "Underwriting Agreement"), by and among the Guarantor, Mutual Group Ltd., Prudential Securities Incorporated and the several Underwriters named in Schedule 1 to the Underwriting Agreement. This opinion is delivered to you pursuant to section 8(d) of the Underwriting Agreement. For the purposes of giving this opinion, we have examined an executed version of the Underwriting Agreement. - 2 - We have also reviewed: (i) Amendment No. 1 to the Form S-3 Registration Statement ("Registration Statement") filed by the Guarantor with the United States Securities and Exchange Commission under the United States Securities Act of 1933 (Registration No.333-96425), together with the form of Prospectus annexed thereto ("Prospectus"); (ii) An Indenture dated as of May [ ], 2000 (the "Indenture") among Mutual Group Ltd., the Guarantor, as guarantor, and The Chase Manhattan Bank, a New York banking corporation, as trustee, as supplemented by a Supplemental Indenture to be dated as of [ ], 2000 (the "Supplemental Indenture"); and (iii) The form of Guarantee to be issued by the Guarantor. The documents listed in items (ii) and (iii) above together with the Underwriting Agreement are herein sometimes collectively referred to as the "Documents" (which term does not include any other instrument or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto). We have also reviewed the memorandum of association and the bye-laws of the Guarantor, each certified by the secretary of the Guarantor on the date hereof, minutes of a meeting of its directors held on March 16, 2000 (the "Minutes"), and such other documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion set forth below. We have assumed (a) the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken, (b) that where a document has been examined by us in draft form, it will be or has been executed in the form of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn to our attention, (c) the capacity, power and authority of each of the parties to the Documents, other than the Guarantor, to enter into and perform its respective obligations under the Documents, (d) the due execution of the Documents by each of the parties thereto, other than the Guarantor, and the delivery thereof by each of the parties thereto, (e) the accuracy and completeness of all factual representations made in the Documents and other documents reviewed by us, (f) that the resolutions contained in the Minutes remain in full force and effect and have not been rescinded or amended, (g) that there is no provision of the law of any jurisdiction, other than Bermuda, which would have any implication in relation to the opinions expressed herein, (h) the validity and binding effect under the laws of the State of new York in the United States of America (the "Foreign Laws") of the Documents which are expressed to be governed by such Foreign Laws in accordance with their respective terms, (i) the validity and binding effect under the Foreign Laws of the submission by the Guarantor pursuant to the Documents to the non-exclusive jurisdiction of the courts of any United States Federal or New York State court sitting in the Borough of Manhattan in the City of New York in the said United States of America (the "Foreign Courts"). - 3 - The obligations of the Guarantor under the Documents (a) will be subject to the laws from time to time in effect relating to bankruptcy, insolvency, liquidation, possessory liens, rights of set off, reorganisation, amalgamation, moratorium or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors, (b) will be subject to statutory limitation of the time within which proceedings may be brought, (c) will be subject to general principles of equity and, as such, specific performance and injunctive relief, being equitable remedies, may not be available, (d) may not be given effect to by a Bermuda court, whether or not it was applying the Foreign Laws, if and to the extent they constitute the payment of an amount which is in the nature of a penalty and not in the nature of liquidated damages. Notwithstanding any contractual submission to the jurisdiction of specific courts, a Bermuda court has inherent discretion to stay or allow proceedings in the Bermuda courts. We express no opinion as to the enforceability of any provision of the Documents which provides for the payment of a specified rate of interest on the amount of a judgment after the date of judgment or which purports to fetter the statutory powers of the Guarantor. We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than Bermuda. This opinion is to be governed by and construed in accordance with the laws of Bermuda and is limited to and is given on the basis of the current law and practice in Bermuda. This opinion is issued solely for your benefit and is not to be relied upon by any other person, firm or entity or in respect of any other matter. On the basis of and subject to the foregoing, we are of opinion that: 1. Each of the Guarantor and Mutual Indemnity Ltd., Mutual Indemnity (Bermuda) Ltd., Mutual Indemnity (U.S.) Ltd., MRM Life Ltd., Premium Securities Limited, Premium Securities (Bermuda) Limited, SPDA Limited and Capital Management of Bermuda Limited (the "Bermuda Subsidiaries") is validly existing under the laws of Bermuda as a Guarantor with limited liability and is in good standing under the laws of Bermuda (meaning that the Guarantor and each of the Bermuda Subsidiaries has not failed to make any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax, the failure of which would make such Guarantor immediately liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda). The objects and powers contained in the memorandum of association of each of the Guarantor and the Bermuda Subsidiaries are sufficient to allow it to carry on its business and to own, lease and operate its properties as both are described in the Prospectus and, in the case of the Guarantor, to enter into and to perform its obligations under, or as contemplated under, the Documents. 2. The authorized share capital of the Guarantor, as set out in its memorandum of association, conforms as to legal matters to the description thereof contained in the Registration Statement and the Prospectus. All of the issued shares in the share capital of each of the Guarantor and the Bermuda Subsidiaries have been duly and validly authorized and issued - 4 - and are fully paid and non-assessable (meaning that, subject to the common law doctrine of "piercing the corporate veil" and to any agreement to the contrary between the registered holders and the Guarantor or any of the Bermuda Subsidiaries, as the case may be, no further sums are required to be paid by the holders thereof in connection with the issue of such shares). The Guarantor is the ultimate beneficial owner of all of the issued shares of each of the Bermuda Subsidiaries. The holders of the Common Shares of the Guarantor are not subject to any pre-emptive rights under the laws of Bermuda or the Guarantor's memorandum of association or bye-laws. 3. The Documents have been duly authorized, executed and delivered by the Guarantor. 4. The execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under the Documents, and the consummation by the Guarantor of the transactions contemplated by the Documents do not and will not (a) violate any provision of the memorandum of association and bye-laws of the Guarantor; (b) contravene any provision of any of those laws, rules and regulations of Bermuda which are applicable to transactions of the type contemplated by the Documents; (c) based solely upon the Cause Book maintained at the Bermuda Supreme Court and without further inquiry, contravene any judgment, order or decree by the Bermuda Supreme Court against the Guarantor or any of the Bermuda Subsidiaries; or (d) require any consent, approval or authorization or order of, or qualification with, any Bermuda governmental agency. 5. Based solely upon an inspection of the Cause Book maintained at then Supreme Court of Bermuda and without further inquiry, there is no action, suit or proceeding now pending before the Bermuda Supreme Court to which the Guarantor or any of the Bermuda Subsidiaries is a party or to which the assets, properties or operations of the Guarantor or any of Bermuda Subsidiaries is subject. 6. All statements (but excluding those statements forming a part of financial information or accounts) made in the Registration Statement and Prospectus with respect to statutes, regulations, rules, treaties and other laws of Bermuda (including, but not limited to, statements made with respect to the Insurance Act and Bermuda tax matters) fairly and accurately present the information set forth therein and such counsel's opinion as to such matters. 7. Pursuant to the Underwriting Agreement, and to the extent that the laws of Bermuda are relevant, the Guarantor has legally, validly, effectively and irrevocably submitted to the jurisdiction of the United States Federal and New York State courts sitting in the Borough of Manhattan in The City of New York, State of New York, and has legally, validly and effectively appointed CT Corporation System as the authorized agent of the Guarantor for the purposes described in Section 16 of the Underwriting Agreement. - 5 - 8. The choice of the Foreign Laws as the governing law of the Documents is a valid choice of law and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural in nature, (ii) which are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda. 9. The courts of Bermuda would recognise as a valid judgment, a final and conclusive judgment in personam obtained in the Foreign Courts against the Guarantor based upon the Documents under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty) and would give a judgment based thereon provided that (a) such courts had proper jurisdiction over the parties subject to such judgment, (b) such courts did not contravene the rules of natural justice of Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e) no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of Bermuda and (f) there is due compliance with the correct procedures under the laws of Bermuda. 10. Each of the Bermuda Subsidiaries is duly registered as an insurer under the Insurance Act of 1978, as amended by the Insurance Amendment Act of 1995, and the regulations promulgated thereunder (together, the "Insurance Act") and as so registered, each of the Bermuda Subsidiaries may conduct that insurance business which it is described in the Prospectus as carrying on; and, based solely on the certificates of compliance and without independent inquiry, each of the Bermuda Subsidiaries has filed with the appropriate Bermuda governmental authority all reports, documents or other information required to be filed under the Insurance Act. On the basis that the Guarantor carries on its business as set forth in the Prospectus, there is no requirement that it be licensed under the Insurance Act. Yours faithfully EX-4.1 3 FORM OF INDENTURE SENIOR NOTES MRM Exhibit 4.1 ================================================================================ MUTUAL RISK MANAGEMENT LTD. TO THE CHASE MANHATTAN BANK as Trustee ______________ Senior Indenture Dated as of ________ __, 2000 ______________ ================================================================================ TABLE OF CONTENTS ----------
Page ---- Recitals of the Company ARTICLE I Definitions and Other Provisions of General Application Section 1.1. Definitions................................................................... 1 Section 1.2. Compliance Certificates and Opinions.......................................... 8 Section 1.3. Forms of Documents Delivered to Trustee....................................... 9 Section 1.4. Acts of Holders; Record Dates................................................. 9 Section 1.5. Notices, Etc., to Trustee and Company......................................... 11 Section 1.6. Notice to Holders; Waiver..................................................... 12 Section 1.7. Conflict with Trust Indenture Act............................................. 12 Section 1.8. Effect of Headings and Table of Contents...................................... 12 Section 1.9. Successors and Assigns........................................................ 12 Section 1.10. Separability Clause........................................................... 12 Section 1.11. Benefits of Indenture......................................................... 13 Section 1.12. Governing Law................................................................. 13 Section 1.13. Non-Business Days............................................................. 13 ARTICLE II Security Forms Section 2.1. Forms Generally............................................................... 14 Section 2.2. Form of Face of Security...................................................... 14 Section 2.3. Form of Reverse of Security................................................... 16 Section 2.4. Additional Provisions Required in Global Security............................. 18 Section 2.5. Form of Trustee's Certificate of Authentication............................... 19 ARTICLE III The Securities Section 3.1. Title and Terms............................................................... 20 Section 3.2. Denominations................................................................. 22 Section 3.3. Execution, Authentication, Delivery and Dating................................ 22 Section 3.4. Temporary Securities.......................................................... 24 Section 3.5. Global Securities............................................................. 24 Section 3.6. Registration, Transfer and Exchange........................................... 25
- -------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. Section 3.8. Payment of Interest; Interest Rights Preserved.................................................... 27 Section 3.9. Persons Deemed Owners............................................................................. 28 Section 3.10. Cancellation...................................................................................... 29 Section 3.11. Computation of Interest........................................................................... 29 Section 3.12. Shortening and Extending Stated Maturity.......................................................... 29 Section 3.13. CUSIP Numbers..................................................................................... 30 ARTICLE IV Satisfaction And Discharge Section 4.1. Satisfaction and Discharge of Indenture........................................................... 30 Section 4.2. Application of Trust Money........................................................................ 31 ARTICLE V Remedies Section 5.1. Events of Default................................................................................. 32 Section 5.2. Acceleration of Maturity; Rescission and Annulment................................................ 33 Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee................................... 35 Section 5.4. Trustee May File Proofs of Claim.................................................................. 35 Section 5.5. Trustee May Enforce Claims Without Possession of Securities....................................... 36 Section 5.6. Application of Money Collected.................................................................... 36 Section 5.7. Limitation on Suits............................................................................... 36 Section 5.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Amounts................................................................ 37 Section 5.9. Restoration of Rights and Remedies................................................................ 37 Section 5.10. Rights and Remedies Cumulative.................................................................... 38 Section 5.11. Delay or Omission Not Waiver...................................................................... 38 Section 5.12. Control by Holders................................................................................ 38 Section 5.13. Waiver of Past Defaults........................................................................... 38 Section 5.14. Undertaking for Costs............................................................................. 39 Section 5.15. Waiver of Usury, Stay or Extension Laws........................................................... 39 ARTICLE VI The Trustee Section 6.1. Certain Duties and Responsibilities............................................................... 40 Section 6.2. Notice of Defaults................................................................................ 40 Section 6.3. Certain Rights of Trustee......................................................................... 40 Section 6.4. Not Responsible for Recitals or Issuance of Securities............................................ 42 Section 6.5. May Hold Securities............................................................................... 42 Section 6.6. Money Held in Trust............................................................................... 42 Section 6.7. Compensation and Reimbursement.................................................................... 42 Section 6.8. Conflicting Interests............................................................................. 43 Section 6.9. Corporate Trustee Required; Eligibility........................................................... 43 Section 6.10. Resignation and Removal; Appointment of Successor................................................. 44 Section 6.11. Acceptance of Appointment by Successor............................................................ 45
Section 6.12. Merger, Conversion, Consolidation or Succession to Business....................................... 46 Section 6.13. Preferential Collection of Claims Against Company................................................. 46 Section 6.14. Appointment of Authenticating Agent............................................................... 46 ARTICLE VII Holder's Lists and Reports By Trustee and Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders......................................... 48 Section 7.2. Preservation of Information; Communications to Holders............................................ 48 Section 7.3. Reports by Trustee................................................................................ 49 Section 7.4. Reports by Company................................................................................ 49 ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.............................................. 50 Section 8.2. Successor Substituted............................................................................. 50 ARTICLE IX Supplemental Indentures Section 9.1. Supplemental Indentures Without Consent of Holders................................................ 51 Section 9.2. Supplemental Indentures With Consent of Holders................................................... 52 Section 9.3. Execution of Supplemental Indentures.............................................................. 53 Section 9.4. Effect of Supplemental Indentures................................................................. 53 Section 9.5. Conformity with Trust Indenture Act............................................................... 53 Section 9.6. Reference in Securities to Supplemental Indentures................................................ 53 ARTICLE X Covenants Section 10.1. Payment of Principal, Premium and Interest. ...................................................... 54 Section 10.2. Maintenance of Office or Agency................................................................... 54 Section 10.3. Money for Security Payments to be Held in Trust................................................... 54 Section 10.4. Statement by Officers as to Compliance............................................................ 56 Section 10.5. Additional Amounts................................................................................ 56 Section 10.6. Limitation on Liens on Stock of Significant Subsidiaries.......................................... 58 Section 10.7. Limitation on Disposition of Stock of Significant Subsidiaries.................................... 58 Section 10.8. Original Issue Discount........................................................................... 58 Section 10.9. Waiver of Certain Covenants....................................................................... 59
ARTICLE XI Redemption of Securities Section 11.1. Applicability of Article.......................................................................... 59 Section 11.2. Election to Redeem; Notice to Trustee............................................................. 59 Section 11.3. Selection of Securities to be Redeemed............................................................ 59 Section 11.4. Notice of Redemption.............................................................................. 60 Section 11.5. Deposit of Redemption Price....................................................................... 61 Section 11.6. Payment of Securities Called for Redemption....................................................... 61 Section 11.7. Securities Redeemed in Part....................................................................... 62 ARTICLE XII Sinking Funds Section 12.1. Applicability of Article.......................................................................... 62 Section 12.2. Satisfaction of Sinking Fund Payments with Securities............................................. 62 Section 12.3. Redemption of Securities for Sinking Fund......................................................... 63 ARTICLE XIII Defeasance and Covenant Defeasance Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance...................................... 64 Section 13.2. Defeasance and Discharge.......................................................................... 64 Section 13.3. Covenant Defeasance............................................................................... 65 Section 13.4. Conditions to Defeasance or Covenant Defeasance................................................... 65 Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions.......................................................................... 67 Section 13.6. Reinstatement..................................................................................... 67 Section 13.7. Qualifying Trustee................................................................................ 68
.............................. Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section (S). 310(a)(1) ........................................................ 6.9 (a)(2) ........................................................ 6.9 (a)(3) ........................................................ Not Applicable (a)(4) ........................................................ Not Applicable (b) ........................................................ 6.8 6.10 (S). 311(a) ........................................................ 6.13 (b) ........................................................ 6.13 (S). 312(a) ........................................................ 7.1 7.2 (b) ........................................................ 7.2 (c) ........................................................ 7.2 (S). 313(a) ........................................................ 7.3 (b) ........................................................ 7.3 (c) ........................................................ 7.3 (d) ........................................................ 7.3 (S). 314(a) ........................................................ 7.4 (a)(4) ........................................................ 1.2 10.4 10.5 (b) ........................................................ Not Applicable (c)(1) ........................................................ 1.2 (c)(2) ........................................................ 1.2 (c)(3) ........................................................ Not Applicable (d) ........................................................ Not Applicable (e) ........................................................ 10.2 (S). 315(a) ........................................................ 6.1 (b) ........................................................ 6.2 (c) ........................................................ 6.1 (d) ........................................................ 6.1 (e) ........................................................ 5.14 (S). 316(a) ........................................................ 5.12 (a)(1)(A) ........................................................ 5.2 5.12 (a)(1)(B) ........................................................ 5.13 (a)(2) ........................................................ Not Applicable (b) ........................................................ 5.8 (c) ........................................................ 1.4 (S). 317(a)(1) ........................................................ 5.3 (a)(2) ........................................................ 5.4 (b) ........................................................ 10.3 (S). 318(a) ........................................................ 10.7
- ------------------- NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. SENIOR INDENTURE, dated as of __________ __, 2000, between MUTUAL RISK MANAGEMENT LTD., a corporation duly organized and existing under the laws of Bermuda (herein called the "Company"), having its principal office at 44 Church Street, Hamilton HM12 Bermuda, and THE CHASE MANHATTAN BANK, a New York banking corporation, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its senior debentures, notes or other evidences of indebtedness (herein called the "Securities"), unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided; WHEREAS, all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done; and WHEREAS, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, 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 meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation"; (4) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (5) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; (6) whenever the context may require, any gender shall be deemed to include the others; (7) the words "hereby," "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 sub division; and (8) the word "or" is always used inclusively (for example the phrase "A or B" means "A or B or both," not "either A or B but not both"). "Act," when used with respect to any Holder, has the meaning specified in Section 1.4. "Additional Amounts" has the meaning specified in Section 10.5. "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. "Agent Member" means any member of, or participant in, the Depositary. "Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time. -2- "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series. "Board of Directors" means the board of directors of the Company or any duly authorized committee of that 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 any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee is closed for business. "Calculation Agent," with respect to Securities of any series that bear interest determined by reference to a Floating Rate Index, means the Person designated as Calculation Agent by the Company pursuant to Section 3.1 with respect to such series. "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 instrument 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 instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "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 at the date of execution of this Indenture is located at 450 West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services. "Covenant Defeasance" has the meaning specified in Section 13.3. -3- "Debt" means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent and without duplication, (i) every obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable); (v) every capital lease obligation of such Person; (vi) every obligation of such Person pursuant to derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any obligation of the type referred to in clauses (i) through (vii). "Defaulted Interest" has the meaning specified in Section 3.8. "Defeasance" has the meaning specified in Section 13.2. "Depositary" means, with respect to Securities of any series issued or issuable in whole or in part in the form of one or more Global Securities, an organization registered as a clearing agency under the Exchange Act that is designated as Depositary for such Securities as contemplated by Section 3.1 with respect to such Securities. "Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2. "Dollar" or "$" means the currency of the United States of America that, as at the time of payment, is legal tender for the payment of public and private debts. "Event of Default," unless otherwise specified with respect to a series of Securities as contemplated by Section 3.1, has the meaning specified in Section 5.1. "Exchange Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 1.4(g). -4- "Floating Rate Index" means, with respect to Securities of any series that bear a floating interest rate, the index specified as the Floating Rate Index by the Company pursuant to Section 3.1 with respect to such series. "Global Security" means a Security that evidences all or part of the Securities of any series and that bears the legend set forth in Section 2.4 (or such legend as may be specified as contemplated by Section 3.1) issued to the Depositary or its nominee for such series and registered in the name of such Depositary or its nominee. "Government Obligation" means (a) any security which is (i) a direct obligation of the United States of America or the government that issued the foreign currency in which such Securities are or may be payable for the payment of which the full faith and credit of the United States of America or such foreign government is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such foreign government the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such foreign government, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any Govern ment Obligation which is specified in clause (a) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt. "Holder" means a Person in whose name a Security is registered in the Securities Register. "Indenture" means this instrument as originally executed and as it may from time to time be amended or supplemented by one or more amendments or indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such amendment or supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such amendment or supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 3.1. "Interest Payment Date" means, with respect to any Security, the Stated Maturity of an installment of interest on such Security. "Investment Company Act" means the Investment Company Act of 1940 or any successor statute thereto, in each case as amended from time to time. -5- "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind. "Maturity" means, when used with respect to any Security, the date on which the principal of such Security or any 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" means a written notice of the kind specified in Section 5.1(d) or 5.1(e). "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Company or any Affiliate of the Company. "Original Issue Date" means the date of issuance specified as such in each Security. "Outstanding" means, when used with respect to any Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose payment or redemption money 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; (iii) Securities as to which Defeasance has been effected pursuant to Section 13.2; (iv) Securities which have been paid pursuant to Section 3.7 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to the provisions of this Indenture, unless proof satisfactory to the Trustee is presented that any such Securities are held by a bona fide purchaser in -6- whose hands such Securities are valid, binding and legal obligations of the Company; and (v) Securities converted or exchanged into other securities of the Company if the terms of such Securities provide for conversion or exchange pursuant to Section 3.1; provided, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or 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 that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's 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 such other obligor. Upon the written request of the Trustee, the Company shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of the Company or any other obligor on the Securities or any Affiliate of the Company or such obligor, and subject to the provisions of Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. "Paying Agent" means any Person authorized by the Company to pay the principal of, any premium or interest on or other amounts with respect to any Securities on behalf of the Company. "Person" means any legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association or government or any agency or political subdivision thereof or any other entity of whatever nature. "Place of Payment" means, with respect to the Securities of any series, the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to the Securities of that series are payable as specified pursuant to Section 3.1. "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. For the purposes of this definition, any Security authenticated -7- and delivered under Section 3.7 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 fixed by or pursuant to this Indenture. "Regular Record Date" for the interest payable on any Interest Payment Date with respect to the Securities of a series means, unless otherwise provided pursuant to Section 3.1 with respect to Securities of such series, the date that is fifteen days next preceding such Interest Payment Date (whether or not a Business Day). "Responsible Officer," when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any senior trust officer, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Securities" or "Security" means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture. "Securities Act" means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 3.6. "Significant Subsidiary" means a Subsidiary of the Company that constitutes a "significant subsidiary" of the Company as such term is defined in Rule 1-02(w) of Regulation S-X. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.8. "Stated Maturity," when used with respect to any Security or any installment of principal thereof or interest thereon, or any Additional Amounts with respect -8- thereto, 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, or such Additional Amounts are, due and payable, as such date may, in the case of the Stated Maturity of the principal on any Security, be shortened or extended as provided in such Security and this Indenture. "Subsidiary" means, in respect of any Person, a Person more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries, or by such Person and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and as in effect on the date of this Indenture; provided, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument, solely in its capacity as such and not in its individual capacity, until a successor Trustee shall have become such 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. 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 (including covenants compliance with which constitutes a condition 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 (including covenants compliance with which constitutes a condition 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. -9- (b) Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificates provided pursuant to Sections 10.4 and 10.5) shall include, (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) 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; (iii) a statement that, in the opinion of each such individual, he or she has made such exami nation or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 1.3. Forms 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 several documents. (b) Any certificate or opinion of an 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 after reasonable inquiry that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it 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 after reasonable inquiry 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. -10- (d) Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Officers' Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other inadvertent or unintentional error or omission shall be discovered therein, a new document or instrument may be substituted therefor in corrected form with the same force and effect as if originally received in the corrected form and, irrespective of the date or dates of the actual execution and/or delivery thereof, such substitute document or instrument shall be deemed to have been executed and/or delivered as of the date or dates required with respect to the document or instrument for which it is substituted. Without limiting the generality of the foregoing, any Securities issued under the authority of such defective document or instrument shall nevertheless be the valid obligations of the Company entitled to the benefits of this Indenture equally and ratably with all other Outstanding Securities. Section 1.4. Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made 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 agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments is or 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 conclusive in favor of the Trustee, the Company and any agent 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 the 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 or her the execution thereof. Where such execution is by a Person acting in other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution by any Person 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 Securities Register. -11- (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by 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. (e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided, that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in paragraph (f) of this Section. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (f) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by -12- any Person be cancelled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (g) With respect to any record date set pursuant to paragraph (e) or (f) of this Section, the party hereto that sets such record date may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided, that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. (h) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Section 1.5. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with: (a) the Trustee by any Holder or by 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 (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose (except as otherwise provided in Section 5.1) hereunder if in writing and mailed, first-class, postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument Attention: General Counsel, or at any other address previously furnished in writing to the Trustee by the Company. -13- Section 1.6. Notice to Holders; Waiver. 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 the address of such Holder as it appears in the Securities Register, not later than the latest date (if any), and not earlier than the earliest date (if any), 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. If, by reason of the suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders when said notice is required to be given pursuant to any provision of this Indenture or any Security, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient notification for every purpose hereunder. 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. Section 1.7. Conflict with Trust Indenture Act. If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. 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. -14- Section 1.10. Separability Clause. If 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 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, without regard to conflict of laws provisions thereof. Section 1.13. Non-Business Days. If any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest, premium or principal on or other amounts in respect of such Security need not be made on such date, but may be made on the next succeeding Business Day (and no interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, until such next succeeding Business Day) except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day (in each case with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity). Section 1.14. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of, any premium or interest on or any other amounts with respect to any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, -15- present or future, of the Company or of any successor company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of this Indenture and the issue of the Securities. Section 1.15. Submission to Jurisdiction. The Company agrees that any judicial proceedings instituted in relation to any matter arising under this Indenture or the Securities may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Indenture, the Company hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. The Company also irrevocably and unconditionally waives for the benefit of the Trustee and the Holders of the Securities any immunity from jurisdiction and any immunity from legal process (whether through services of notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of this Indenture. The Company hereby irrevocably designates and appoints for the benefit of the Trustee and the Holders of the Securities for the term of this Indenture, CT Corporation, 111 8th Avenue, New York, New York 10011, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to Mutual Risk Management Ltd., 44 Church Street, Hamilton HM12 Bermuda, Attention: General Counsel) brought against it with respect to any such proceeding in any such court in The City of New York, such service being hereby acknowledged by the Company to be effective and binding service on it in every respect whether or not the Company shall then be doing, or shall have at any time done, business in New York. Such appointment shall be irrevocable so long as any of the Securities or the obligations of the Company hereunder remain outstanding until the appointment of a successor by the Company and such successor's acceptance of such appointment. Upon such acceptance, the Company shall notify the Trustee of the name and address of such successor. The Company further agrees for the benefit of the Trustee and the Holders of the Securities to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said CT Corporation in full force and effect so long as any of the Securities or the obligations of the Company hereunder shall be outstanding. The Trustee shall not be obligated, and shall have no responsibility, with respect to any failure by the Company to take any such action. Nothing herein shall affect the right of the Trustee or any Holder to institute proceedings against the Company in the courts of any other jurisdiction or jurisdictions. -16- ARTICLE II Security Forms Section 2.1. Forms Generally. The Securities of each series and the Trustee's certificate of authentication shall be in sub stantially the form or forms set forth in this Article, or in such other forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or per mitted 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 applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the 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 with respect to the authentication and delivery of such Securities. The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods, if required by any securities exchange on which the Securities may be listed, on a steel engraved border or steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such securities. Section 2.2. Form of Face of Security. Mutual Risk Management Ltd. [Title of Security] No. $ MUTUAL RISK MANAGEMENT LTD., a corporation organized and existing under the laws of Bermuda (hereinafter called the "Company", which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to _______________, or registered assigns, the principal sum of __________ Dollars on __________ __, ___ [if the Security is a Global Security, then insert-- or such other principal amount represented hereby as -17- may be set forth in the records of the Securities Registrar hereinafter referred to in accordance with the Indenture,] [; provided, that the Company may shorten or extend the Stated Maturity of the principal of this Security to a date not earlier than ________ and not later than ________ at any time on one or more occasions, subject to certain conditions specified in Section 3.12 of the Indenture.] The Company further promises to pay interest on said principal sum from ________, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [monthly] [quarterly] [semi-annually] in arrears on [insert applicable Interest Payment Dates] of each year, commencing ________, , at the rate [if fixed rate, insert-- of ____%] [if floating rate, insert---equal to ___% in excess of the Floating Rate Index] per annum, until the principal hereof is paid or duly provided for or made available for payment [if applicable, insert-- ; provided, that any overdue principal, premium, Additional Amounts and any overdue installment of interest shall bear additional interest at the rate [if fixed rate, insert --- of _____%] [if floating rate, insert --- equal to ____% in excess of the Floating Rate Index] per annum (to the extent that the payment of such interest shall be legally enforceable), compounded [monthly] [quarterly] [semi-annually], from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. The amount of interest payable for any full interest period shall be computed by dividing the applicable rate per annum by [twelve/four/two]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment [if applicable, insert--, which shall be the [____________ or ____________] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date]. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (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 Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. The Company is also obligated to pay any Additional Amounts as described in Section 10.5 of the Indenture. Payment of the principal of, any premium and interest on or any Additional Amounts with respect to this Security will be made at the office or agency of the Company maintained for that purpose in the [insert Place of Payment], in such coin or currency of the United States of America as at the time of payment is legal tender -18- for payment of public and private debts [if applicable, insert--; provided, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by wire transfer to an account at a banking institution in the United States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date]. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. MUTUAL RISK MANAGEMENT LTD. By:______________________________ Name: Title: Attest: _________________________________________ [Secretary or Assistant Secretary] Section 2.3. Form of Reverse of Security. This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under the Senior Indenture, dated as of ___________, (herein called the "Indenture"), between the Company and The Chase Manhattan Bank as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert--, limited in aggregate principal amount to $______]. -19- All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture. The terms of this Security include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act. This Security is subject to all such terms and the Holder of this Security is referred to the Indenture and the Trust Indenture Act for a statement of such terms. [If applicable, insert--The Company may at any time, at its option, on or after _________, ____, and subject to the terms and conditions of Article XI of the Indenture, redeem this Security in whole at any time or in part from time to time, at [if applicable, insert-- the following Redemption Prices (expressed as percentages of the principal amount hereof): If redeemed during the 12-month period beginning _____________, Redemption Year Price ---- ----- and thereafter at a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest to but excluding the date fixed for redemption,] [a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest to but excluding the date fixed for redemption.] [If the Security is subject to redemption of any kind, insert--In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.] [If applicable, insert - The Securities of this series are not redeemable prior to Stated Maturity.] [The Indenture contains provisions for satisfaction and discharge of [the entire indebtedness of] [or] [certain restrictive covenants and Events of Default with respect to] this Security [, in each case] upon compliance by the Company with certain conditions set forth in the Indenture.] The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in any manner the rights and obligations of -20- the Company and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities of each 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 Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security 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 Security. [If the Security is not a Discount Security, insert--As provided in and subject to the provisions of the Indenture, if an Event of Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of this series may declare the principal amount of all the Securities of this 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 the principal amount of and the accrued interest on all the Securities of this series shall become immediately due and payable.] [If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.] No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, any premium and interest on and any Additional Amounts with respect to this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Indenture for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the -21- Company and the Securities Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Securities of this series, of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $___________ and any integral multiple of $____________ in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SECTION 2.4. Additional Provisions Required in Global Security. Unless otherwise specified as contemplated by Section 3.1, any Global Security issued hereunder shall, in addition to the provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the following form: "THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND 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, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE." SECTION 2.5. Form of Trustee's Certificate of Authentication. -22- The Trustee's certificates 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. Dated: THE CHASE MANHATTAN BANK, as Trustee By:__________________________ Authorized officer ARTICLE III THE SECURITIES Section 3.1. Title and Terms. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and set forth in an Officers' Certificate or established in one or more indentures supplemental hereto: (a) the title of the securities of such series, which shall distinguish the Securities of the series from all other Securities; (b) the limit, if any, upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to the provisions of this Indenture and except for any Securities that, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder); (c) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the method of determination thereof, and any dates on which or circumstances under which, the Company shall have the right to extend or shorten such Stated Maturity or Maturities; -23- (d) the rate or rates at which the Securities of such series shall bear interest, if any, and, if such interest is determined by reference to a floating interest rate, the Floating Rate Index and Calculation Agent, the date or dates from which any 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 the method by which any of the foregoing shall be determined; (e) the extent, if any, to which the Securities of such series will be secured; (f) the place or places where the principal of, any premium and interest on and any Additional Amounts with respect to the Securities of such series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, any restrictions that may be applicable to any such transfer or exchange in addition to or in lieu of those set forth herein, and the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made; (g) the obligation of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions, or at the option of the Company or a Holder thereof, and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation or option; (h) if the amount of principal of or any premium or interest on any Securities of such series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined. (i) if other than Dollars, the currency or currencies (including any currency unit or units) in which the principal of, any premium and interest on and any Additional Amounts with respect to the Securities of the series shall be payable, or in which the Securities of the series shall be denominated and the manner of determining the equivalent thereof in Dollars for any purpose, including for purposes of the definition of Outstanding; (j) if the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the prin cipal of, any premium or interest on or any Additional Amounts with respect to such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable or the manner in which such amount shall be determined; -24- (k) if other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof; (l) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined; (m) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.2 or Section 13.3 or both such Sections; (n) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends that shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.4 and any circumstances in addition to or in lieu of those set forth in Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof; (o) the additions, modifications or deletions, if any, in the Events of Default or covenants of the Company set forth herein with respect to the Securities of such series; (p) the appointment of any Paying Agent or agents for the Securities of such series; (q) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange; (r) the denominations in which any Securities of such series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof; and -25- (s) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.1(e)). All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any indenture supplemental hereto. 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. Section 3.2. Denominations. The Securities of each series shall be issuable only in registered form without coupons and in denominations of $1,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified as contemplated by Section 3.1. Section 3.3. Execution, Authentication, Delivery and Dating. (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, 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. 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. (b) 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 by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by 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 -26- relation to such Securities, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating: (i) if the form 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; (ii) if the terms 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 (iii) 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 terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. If 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 will affect the Trustee's own rights, duties, indemnities or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee. (c) Notwithstanding the provisions of Section 3.1 and of paragraph (b) of this Section, 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 paragraph (b) of this Section at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. (d) 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 the manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. 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 can cellation as provided in Section 3.10, 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. -27- (e) Each Security shall be dated the date of its authentication. Section 3.4. Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denom ination, substantially of the tenor of the definitive Securities in lieu of which they are issued and 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 such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company designated for that purpose, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denom inations having the same Original Issue Date and Stated Maturity and having the same terms as such temporary Securities. 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. Section 3.5. Global Securities. (a) Each Global Security issued under this Indenture shall be registered in the name of the Depositary designated by the Company for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. (b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (i) such Depositary advises the Trustee and the Company in writing that such Depositary is no longer willing or able to properly discharge its responsibilities as Depositary with respect to such Global Security and no qualified successor is appointed by the Company within 90 -28- days of receipt by the Company of such notice, (ii) such Depositary has ceased to be a clearing agency registered under the Exchange Act and no qualified successor is appointed by the Company within 90 days after its receipt of notice or its becoming aware of such event, (iii) the Company executes and delivers to the Trustee a Company Order stating that the Company elects to terminate the book-entry system through the Depositary, or (iv) there shall have occurred and be continuing an Event of Default with respect to such Global Security. (c) If any Global Security is to be exchanged for other Securities or cancelled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Securities Registrar for exchange or cancellation as provided in this Article. If any Global Security is to be exchanged for other Securities or cancelled in part, or if another Security is to be exchanged in whole or in part for a beneficial interest in any Global Security, then either (i) such Global Security shall be so surrendered for exchange or cancellation as provided in this Article or (ii) the principal amount thereof shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or cancelled, or equal to the principal amount of such other Security to be so exchanged for a beneficial interest therein, as the case may be, by means of an appropriate adjustment made on the records of the Securities Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Security by the Depositary, accompanied by registration instructions, the Trustee shall, subject to this Section and as otherwise provided in this Article, authenticate and deliver any Securities issuable in exchange for such Global Security (or any portion thereof) in accordance with the instructions of the Depositary. The Trustee shall not be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. (d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Article, Section 9.6 or 11.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. (e) The Depositary or its nominee, as the registered owner of a Global Security, shall be the Holder of such Global Security for all purposes under this Indenture and the Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly, any such owner's beneficial interest in a Global Security shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members. Neither the Trustee nor the Securities Registrar shall have any liability in respect of any transfers effected by the Depositary. -29- (f) The rights of owners of beneficial interests in a Global Security shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such owners and the Depositary and/or its Agent Members. (g) The registered holder of a Global Security may grant proxies to any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture and the Securities. Section 3.6. Registration, Transfer and Exchange. (a) The Company shall cause to be kept at the Corporate Trust Office a 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 "Securities Register"). The Trustee is hereby appointed "Securities 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 a series at the office or agency of the Company designated for that purpose, 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 like tenor and aggregate principal amount. (c) At the option of the Holder, Securities of a series may be exchanged for other Securities of the same series of any authorized denominations and of like tenor and aggregate principal amount, 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 that the Holder making the exchange is entitled to receive. (d) All Securities issued upon any transfer or exchange of Securities shall be the valid obli gations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange. (e) Every Security presented or surrendered for 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 Securities Registrar, duly executed by the Holder thereof or such Holder's attorney duly authorized in writing. -30- (f) No service charge shall be made to a Holder for any transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Securities. (g) The Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 11.3 and ending at the close of business on the day of such mailing or (B) 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. (h) Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities. (a) If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series, of like tenor and aggregate 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 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 the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series, of like tenor and principal amount as such destroyed, lost or stolen Security and bearing a number not contemporaneously outstanding. (c) If 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 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) connected therewith. -31- (e) Every new Security of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, 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 the same series duly issued hereunder. (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 3.8. Payment of Interest; Interest Rights Preserved. (a) Except as otherwise contemplated by Section 3.1 with respect to any series of Securities, interest on any Security of any series that 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 in respect of Securities of such series, except that, unless otherwise provided in the Securities of such series, interest payable on the Stated Maturity, redemption or repayment of the principal of a Security shall be paid to the Person to whom principal is paid. The initial payment of interest on any Security of any series that is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 3.1 with respect to the related series of Securities. (b) Any interest on any Security of any series that is due and payable, but is not timely paid or duly provided for, on any Interest Payment Date for Securities of such series (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date 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 paragraph (i) or (ii) below: (i) 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 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 at least 30 days prior to such date, 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 -32- deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest. Thereupon the Trustee shall fix a 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 given to each Holder of Securities of such series in the manner set forth in Section 1.6, 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; or (ii) The Company may 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) Unless otherwise provided in or pursuant to this Indenture or any supplemental indenture, interest on the Securities of any series will be payable, at the option of the Company, (i) by check mailed to the address of the Holder as such address appears in the Securities Register for the Securities of such series or (ii) by wire transfer to an account at a banking institution in the United States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date. Section 3.9. Persons Deemed Owners. (a) 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, any premium and (subject to Section 3.8) interest on and any Additional Amounts with respect to such Security and for all other purposes whatsoever, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary. (b) No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Trustee -33- and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee or any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominee) as Holder of any Security. Section 3.10. Cancellation. All Securities surrendered for payment, redemption, 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 any such Securities delivered to the Trustee for any purpose shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder that the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with its customary practices and the Trustee shall deliver to the Company a certificate of such disposition. Section 3.11. 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 for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in any partial month in such period, and interest on the Securities of each series for a full period shall be computed by dividing the rate per annum by the number of interest periods that together constitute a full twelve months. -34- Section 3.12. Shortening and Extending Stated Maturity. (a) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to shorten the Stated Maturity of the principal of the Securities of such series at any time to any date not earlier than the first date on which the Company has the right to redeem the Securities of such series. In the event that the Company elects to shorten the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. (b) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to extend the Stated Maturity of the principal of the Securities of such series at any time. In the event that the Company elects to extend the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. Section 3.13. 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 and other similar or related matters as a convenience to Holders; provided, that any such notice or other materials may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or other materials 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. ARTICLE IV Satisfaction and Discharge Section 4.1. Satisfaction and Discharge of Indenture. Upon a Company Request, this Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and as otherwise provided in this Section) and the Trustee, on the demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) either (i) all Securities theretofore authenticated and delivered (other than (A) Securities that have been mutilated, destroyed, lost or stolen and that have -35- been replaced or paid as provided in Section 3.7 and (B) Securities 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 dis charged from such trust as provided in Section 10.3) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year of the date of deposit, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of paragraph (ii)(A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose (x) an amount in the currency or currencies in which the Securities of such series are payable, (y) 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 (z) a combination thereof, in each case where any Government Obligations are deposited, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, sufficient to pay and dis charge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal, any premium and interest and any Additional Amounts in respect thereof to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (c) 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. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if money shall have been -36- deposited with the Trustee pursuant to paragraph (a)(ii) of this Section, the obligations of the Trustee under Section 4.2 and Section 10.3(e) shall survive. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 4.1 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 Outstanding Securities. Section 4.2. Application of Trust Money. Subject to the provisions of Section 10.3(e), all money and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by the Trustee, 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 its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium, interest and Additional Amounts for the payment of which such money and Government Obligations (including the proceeds thereof) have been deposited with or received by the Trustee. ARTICLE V Remedies Section 5.1. Events of Default. "Event of Default", wherever used herein with respect to the 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) except as may be specified pursuant to Section 3.1: (a) default in the payment of any interest upon any Security of that series, or any Additional Amounts payable with respect thereto, when such interest becomes, or such Additional Amounts become, due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of or any premium on any Security of that series at its Maturity, or any Additional Amounts payable with respect -37- thereto, when such principal or premium becomes, or such Additional Amounts become, due and payable at their Maturity; or (c) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of such series; or (d) 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 specifically dealt with elsewhere in this Section or that has expressly been included in this Indenture solely for the benefit of series of Securities other than such series), and continuance of such default or breach for a period of 30 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, unless the Trustee, or the Trustee and the Holders of a principal amount of Securities of such series not less than the principal amount of Securities that gave such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; or (e) a default under any (i) indebtedness for any money borrowed by the Company (including a default with respect to Securities of any series other than that series), (ii) mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company, or (iii) guarantee of payment for money borrowed, which default shall consist of a payment default at the stated maturity thereof, after giving effect to any applicable grace period, or shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness or accelerated indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have 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 and requiring the Company to cause such indebtedness or accelerated indebtedness to be discharged or cause such acceleration to be rescinded or annulled, as the case may be, and stating that such notice is a "Notice of Default" hereunder; provided, that a default shall exist under this subsection only if the aggregate principal amount outstanding under all such indebtedness that is so in default or has become due prior to the date on which it would otherwise become due and payable exceeds $40,000,000; or (f) the Company shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of -38- $40,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or (g) the entry by a court having jurisdiction in the premises of 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, state or foreign bankruptcy, insolvency, reorganization or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of the Company's property, or ordering the winding up or liquidation of the Company's 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 (h) the filing by the Company of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar 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 other similar official of the Company or of any substantial part of the Company's property, or the making by the Company of an assignment for the benefit of creditors, or the admission by it in writing of the Company's inability to pay its debts generally as they become due, or the authorization of any such action by the Board of Directors; or (i) any other Event of Default provided with respect to Securities of that series. 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 or Default specified in Section 5.1(g) or (h)) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount of, all unpaid accrued interest and premium on and Additional Amounts with respect to all of the Securities of that series (or, if the Securities of that series are Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms 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 portion thereof) of, accrued interest, premium and Additional Amounts on all of the Securities of such series shall become immediately due and payable. If an Event of Default specified in Section 5.1(g) or (h) occurs, all unpaid principal of, accrued interest and premium on and Additional Amounts with respect -39- to the Outstanding Securities of that series (or such lesser amount as may be provided for in the Securities of such series) shall automatically become and 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 aggregate 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 (i) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue installments of interest on all Securities of that series and any Additional Amounts with respect thereto, (B) the principal of and any premium on any Securities of that series which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and any interest at the rate prescribed therefor in such Securities, (C) all overdue sinking fund payments with respect to Securities of such series and interest thereon at the rate prescribed therefor in such Securities, (D) to the extent that payment of such interest is lawful, interest upon overdue installments of interest and Additional Amounts at the rate prescribed therefor in such Securities, and (E) 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 (ii) 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. -40- Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. (a) The Company covenants that if (i) default is made in the payment of any installment of interest on or any Additional Amounts, payable with respect to such interest, with respect to any Security of any series when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 30 days, or (ii) default is made in the payment of the principal of or any premium on any Security or any Additional Amounts with respect thereto at the Maturity thereof, or (iii) default is made in the deposit of any sinking fund payment, when and as due by the terms of a Security of any series, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and Additional Amounts and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal, premium interest and Additional Amounts at the rate prescribed therefor in such Securities, and, in addition thereto, all amounts owing to the Trustee, its agents and counsel under Section 6.7. (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 Security 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 Security, 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 effectual 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. -41- Section 5.4. Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and 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 any amounts due the Trustee, its agents and counsel under Section 6.7. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or 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; provided, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. 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 all the amounts owing the Trustee, its agents and counsel under Section 6.7, 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 or property collected or to be applied by the Trustee pursuant to this Article with respect to a series of Securities 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 or property on account of principal or any premium, interest or Additional Amounts, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: -42- First: To the payment of all amounts due the Trustee, its agents and counsel under Section 6.7; Second: To the payment of the amounts then due and unpaid for principal of and any premium, interest and Additional Amounts 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, any premium and interest and Additional Amounts, respectively; and Third: The balance, if any, to the Person or Persons entitled thereto. Section 5.7. Limitation on Suits. Subject to Section 5.8, 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, assignee, trustee, liquidator, sequestor (or other similar official) or for any other remedy hereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (b) the Holders of not less than a majority in aggregate 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; (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding for 60 days ; and (e) 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 aggregate 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, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other 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. -43- Section 5.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Amounts. Notwithstanding any other provision in this Indenture, the Holder of any Security of any series shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject to Section 3.8) interest on and any Additional Amounts with respect to such Security on the respective Stated 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 right 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 in Section 3.7(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. 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. -44- Section 5.12. Control by Holders. The Holders of not less than a majority in aggregate 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 (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, and (c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if a Responsible Officer or Officers of the Trustee shall, in good faith, determine that the proceeding so directed would be unjustly prejudicial to the Holders not joining in any such direction or involve the Trustee in personal liability. Section 5.13. Waiver of Past Defaults. (a) The Holders of not less than a majority in aggregate 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 Event of Default hereunder with respect to such series and its consequences, except an Event of Default (i) in the payment of the principal of, any premium or interest on or any Additional Amounts with respect to any Security of such series (unless such Event of Default has been cured and the Company has paid to and deposited with the Trustee a sum sufficient to pay all matured installments of interest and all principal of, any premium on and any Additional Amounts with respect to all Securities of that series due otherwise than by acceleration) or (ii) in respect of a covenant or provision hereof that under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. (b) Any such waiver shall be deemed to be on behalf of the Holders of all the Securities of such series. (c) Upon any such waiver, such Event of Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured for every -45- purpose of this Indenture; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon. Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by its, his or her 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 and expenses, 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 aggregate 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, any premium or interest on or any Additional Amounts with respect to any Security on or after the Stated 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 -46- Section 6.1. Certain Duties and Responsibilities. The rights, immunities, duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, 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 reason able grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. 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. If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default actually known to the Trustee within 90 days after it occurs unless such default shall have been cured or waived; provided, that except in the case of a default in the payment of the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of any series or in the making of any sinking fund payment payable with respect to Securities of any series, the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interest of Holders of Securities of that series; and provided, further, that in the case of any default of the character specified in Section 5.1(d) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" 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 protected in acting or refraining from acting in good faith upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; -47- (b) any request or direction of the Company shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall 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, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that 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, security or other paper or document, but the Trustee, in its discretion, may make such inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (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; (h) the Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Indenture; (i) no permissive power or authority available to the Trustee shall be construed to be a duty; (j) the Trustee shall not be charged with knowledge of any Event of Default unless either (i) a Responsible Officer of the Trustee assigned to its Corporate Trust Office shall have actual knowledge thereof or (ii) the Trustee shall have received notice thereof from the Company or a Holder; and -48- (k) in the event that the Trustee is also acting as Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar hereunder, the rights and protections afforded to the Trustee pursuant to this Article shall also be afforded such Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar. 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 neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof. Section 6.5. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other agent of the Company, 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, Securities 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. (a) The Company agrees: (i) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder in such amounts as the Trustee shall agree from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); -49- (ii) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (iii) to indemnify the Trustee and its officers, directors, agents and employees for, and to hold them harmless against, any loss, liability, damage, claim or expense (including the reasonable compensation, expenses and disbursements of its agents and counsel) incurred without negligence or bad faith, arising out of or in connection with the acceptance or administration of this trust or the performance of the Trustee's duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. (b) The Trustee shall have a lien prior to the Securities upon all property and funds held or collected by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section, except with respect to funds held in trust for the benefit of the Holders of particular Securities. (c) Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(g) or 5.1(h) occurs, the expenses (including the reasonable charges and expenses of its agents and counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal, state or foreign bankruptcy, insolvency or other similar law. (d) The obligations of the Company under this Section shall survive the satisfaction and discharge of this Indenture, the defeasance of the Securities and the earlier resignation or removal of the Trustee. Section 6.8. Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or under any other indenture with respect to securities issued or guaranteed by the Company. -50- Section 6.9. Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be the Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person 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 with respect to the Securities of any series 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. Neither the Company nor any Person directly or indirectly controlling, controlled by or under common control with the Company shall serve as Trustee for the Securities of any series issued hereunder. 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 under Section 6.11. (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 an instrument of acceptance by a successor Trustee 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 aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. (d) If at any time: (i) 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 (ii) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or by any such Holder, or -51- (iii) 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, (x) the Company, by a Board Resolution, may remove the Trustee with respect to the Securities of all series issued hereunder or (y) subject to Section 5.14, any such Holder may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to the Securities of all series issued hereunder 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 with respect to the Securities of that or those series. If, 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 aggregate 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, become the successor Trustee with respect to the Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so 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, subject to Section 5.14, on behalf of such Holder 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 to all Holders of Securities of such series. 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 to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring -52- 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 (i) 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, (ii) 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 (iii) 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 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, upon payment of its charges, 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 rights, powers and trusts referred to in paragraph (a) or (b) of this Section, 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. -53- 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 of 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, and in case any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate of authentication shall have the full force which it is provided anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have. Section 6.13. Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). Section 6.14. Appointment of Authenticating Agent. (a) The Trustee may 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 original issue (in accordance with procedures acceptable to the Trustee) and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.7, and 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 certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, or of any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a -54- 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 said supervising or examining authority, then for the purposes of this Section, 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, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. (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 all or substantially all of the corporate trust business of an Authenticating Agent, shall be the successor an Authenticating Agent hereunder, 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 to 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 to 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 appoint a successor Authenticating Agent eligible under the provisions of this Section, which shall be acceptable to the Company, and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. 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. (d) The Company agrees to pay to each Authenticating Agent 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 addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: -55- This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. Dated: THE CHASE MANHATTAN BANK, As Trustee By......................................, As Authenticating Agent By....................................... Authorized Officer ARTICLE VII Holder's Lists and Reports by Trustee and Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee (a) 15 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record 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; in each case to the extent such information is in the possession or control of the Company and has not otherwise been received by the Trustee in its capacity as Securities Registrar. -56- 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 Securities 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) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided in the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee or any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act. Section 7.3. Reports by Trustee. (a) If required by Section 3.13(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each September 15 following the date of this Indenture, deliver to the Holders a brief report, dated as of such September 15, which complies with the provisions of Section 3.13(a) of the Trust Indenture Act. (b) The Trustee shall transmit to Holders such other reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange or system upon which any Securities are listed or traded, with the Commission and with the Company. The Company shall notify the Trustee when any Securities are listed or traded on any securities exchange or system. Section 7.4. Reports by Company. (a) The Company shall furnish to the Holders and to prospective purchasers of Securities that are not registered under the Securities Act, upon their request, the information required to be furnished pursuant to Rule 144A(d)(4) under the Securities Act. -57- (b) The Company shall file with the Trustee and with the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture; provided, that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless: (a) if the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of the Company substantially as an entirety shall be a corporation validly existing under the laws of the United States of America, any State thereof, the District of Columbia or Bermuda 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, any premium and interest on and any Additional Amounts with respect to all the Securities of every series and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (c) 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, any such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have -58- been complied with; and the Trustee may rely upon such Officers' Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Section. Section 8.2. Successor Substituted. (a) Upon any consolidation of the Company with, or merger of the Company into, any other Person, or any conveyance, transfer or lease by the Company of its properties and assets substantially as an entirety to any Person in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or 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 Company shall be discharged from all obligations and covenants under this Indenture and the Securities. (b) Such successor Person may cause to be executed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication pursuant to such provisions and any Securities that such successor Person thereafter shall cause to be executed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture. (c) In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form may be made in the Securities thereafter to be issued as may be appropriate. ARTICLE IX Supplemental Indentures -59- 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 any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (a) to establish the form or terms of Securities of any series as permitted by Sections 2.1 or 3.1; or (b) 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 (c) 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 (d) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or (e) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided, that any such addition, change or elimination (i) shall become effective only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision or (ii) shall not apply to any Outstanding Securities; or (f) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the purposes of securing the Securities; or (g) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or (h) to cure any ambiguity, to correct or supplement any provision herein that 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, -60- provided, that such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or (i) to comply with the requirements of the Commission in order to effect or maintain qualification of this Indenture under the Trust Indenture Act. Section 9.2. Supplemental Indentures With Consent of Holders. (a) With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of such Holders delivered to the Company and the Trustee, the Company, by a Board Resolution, and the Trustee 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 modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of each series affected thereby, (i) change the Stated Maturity of the principal of, any premium or interest on or Additional Amounts with respect to, any Security, or reduce the principal amount thereof or the rate of interest of any Security or any premium payable upon the redemption thereof or otherwise, or reduce the principal amount of a Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, modify the calculation of the rate of interest on any Security or change the date on which any Security may be redeemed, or change the Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon or any Additional Amounts with respect thereto are 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 with respect to any Securities, on or after the Redemption Date, or (ii) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series, the consent of whose Holders is required to enter into any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with any provisions of this Indenture or any default hereunder and their consequences provided for in this Indenture, or (iii) modify any of the provisions of this Section, Section 5.13 or Section 10.11, 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 affected thereby; provided, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the -61- references to "the Trustee" and concomitant changes in this Section and Section 10.11, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.1(g). (b) A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that 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. 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 shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties, responsibilities or immunities 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. -62- Section 9.6. Reference in Securities to Supplemental Indentures. Securities of any series 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 Company, to any such supplemental indenture may be prepared and executed by the Company and 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. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on and Additional Amounts with respect to the Securities of that series in accordance with the terms of such Securities and this Indenture. 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 initially appoints the Trustee, acting through its Corporate Trust office, as its agent for such purposes. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain such 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 of such purposes and may from time to time rescind such -63- designations; provided, 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 office or agency. Section 10.3. Money for Security 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, any premium or interest on or any Additional Amounts with respect to 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 any premium, interest or Additional Amounts 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 in writing of its action or failure so to act. (b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to 10:00 a.m., New York City time, on each due date of the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act, 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 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 (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. (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. -64- (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, any premium or interest on or any Additional Amounts with respect to any Security of any series and remaining unclaimed for two years after such principal, premium or interest has, or such Additional Amounts have, become due and payable shall (unless otherwise required by mandatory provision of the applicable escheat or abandoned or unclaimed property law) be paid on Company Request to the Company, or (if then held by the Company) shall (unless otherwise required by mandatory provision of the applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of 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; provided, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company. Section 10.4. Statement by Officers as to Compliance. The Company shall 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 (one of the signatories to which shall be the principal financial officer, principal executive officer or principal accounting officer of the Company) covering the preceding fiscal year, 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 of this Indenture (without regard to any grace period or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. Section 10.5. Additional Amounts. (a) All payments of principal of and premium, if any, interest and any other amounts on or in respect of the Securities of any series shall be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which the Company is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted -65- by (i) the laws (or any regulations or rulings promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If any withholding or deduction at source is required, the Company shall, subject to the limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable (the "Additional Amounts"); provided, that the Company shall not be required to make payment of such Additional Amounts for or on account of: (i) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such Holder or the beneficial owner of such Security: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or therein or otherwise had some connection with the relevant taxing jurisdiction or any political subdivision thereof or therein other than by reason of the mere ownership of, or receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or any political subdivision thereof or therein, unless such Security could not have been presented for payment elsewhere; or (c) presented such Security more than 30 days after the date on which the payment in respect of such Security first became due and payable except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts if it had presented such Security for payment on any day within such period of 30 days; (ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or (iii) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of such Security to comply, within 90 days, with any reasonable request by the Company addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; -66- nor shall Additional Amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Security to any Holder where the beneficial owner of such Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or partner of such partnership that would not have been entitled to such Additional Amounts had it been the Holder of the Security. (b) Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on or in respect of any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made. (c) Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series, at least 10 days prior to the first Interest Payment Date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below- mentioned Officer's Certificate, the Company shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section. If any such withholding shall be required, then such Officer's Certificate shall specify by jurisdiction in which Holders of Securities are resident for tax purposes the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer's Certificate furnished pursuant to this Section. -67- Section 10.6. Existence. Subject to Article VIII and Section 10.9, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its and its Subsidiaries' existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders. Section 10.7. Payment of Taxes and Other Claims. The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Company or any of its Subsidiaries or upon the income, profits or property thereof, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any of its respective Subsidiaries; provided, however, that the Company shall be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which adequate reserves have been established to the extent required by generally accepted accounting principles. Section 10.8. Limitation on Liens on Stock of Significant Subsidiaries. So long as any Securities are Outstanding, the Company will not, nor will it permit any Significant Subsidiary at any time, directly or indirectly, to create, assume, incur, or otherwise permit to exist any Debt secured by any Lien upon any shares of capital stock of any Significant Subsidiary (whether such shares of stock are now owned or hereafter acquired) without effectively providing concurrently that the Securities (and, if the Company so elects, any other Debt of the Company that ranks equally with the Securities) shall be secured equally and ratably with or prior to such Debt for at least the time period such other Debt is so secured; provided, that this Section shall not apply, with respect to the Securities for any series, to any Debt existing on the date of the first issuance of Securities of such series that is so secured and any renewals, extensions or refundings of such Debt. Section 10.9. Limitation on Disposition of Stock of Significant Subsidiaries. Subject to the provisions of Article VIII, so long as any Securities are outstanding, the Company will not sell, transfer or otherwise dispose of any shares of capital stock of any Significant Subsidiary, and will not permit any Significant Subsidiary to sell, transfer or otherwise dispose of any shares of capital stock of any other Significant -68- Subsidiary. Notwithstanding the foregoing, (i) the Company may merge or consolidate any Significant Subsidiary into or with another direct or indirect Subsidiary of the Company and (ii) the Company may, subject to the provisions of Article VIII, sell, transfer or otherwise dispose of the entire capital stock of any Significant Subsidiary at one time for consideration consisting of cash or other property which is at least equal to the fair market value thereof as determined by the Board of Directors pursuant to a Board Resolution adopted in good faith. Section 10.10. Original Issue Discount. For each year during which any Discount Securities are Outstanding, the Company shall furnish to each Paying Agent in a timely fashion such information as may be reasonably requested by each Paying Agent in order that each Paying Agent may prepare the information which it is required to report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such information shall include the amount of original issue discount includible in income for each $25 of principal amount at Stated Maturity of outstanding Securities during such year. Section 10.11. Waiver of Certain Covenants. Except as otherwise specified as contemplated by Section 3.1 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any covenant in Section 10.8 or 10.9 or provided pursuant to Section 3.1 or Section 9.1(a) or (c) for the benefit of the Holders of such series if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant, but no such waiver shall extend to or affect such covenant, except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company in respect of any such covenant shall remain in full force and effect. -69- ARTICLE XI Redemption of Securities Section 11.1. Applicability of Article. Securities of any series that 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 such Securities) 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 or in another manner specified as contemplated by Section 3.1 for such Securities. In case of any redemption at the election of the Company, the Company shall, at least 60 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. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company that is subject to a condition specified 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 or condition. Section 11.3. Selection of Securities to be Redeemed. (a) If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided, that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. (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. 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 Security redeemed or to be -70- redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed. (c) The provisions of paragraphs (a) and (b) of this Section shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. Section 11.4. Notice of Redemption. (a) Notice of redemption shall be given not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. (b) With respect to Securities of each series to be redeemed, each notice of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price, as calculated by the Company, together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the day provided by the terms of such Securities (and if an estimate is provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated); (iii) if less than all Outstanding Securities of such series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed; (iv) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that interest thereon shall cease to accrue on and after said date; (v) the place or places where such Securities are to be surrendered for payment of the Redemption Price; (vi) that the redemption is for a sinking fund, if such is the case; and -71- (vii) such other provisions as may be required in respect of the terms of such Securities. (c) Unless otherwise specified with respect to any Securities in accordance with Section 3.1, with respect to any redemption of Securities at the election of the Company, unless, upon the giving of notice of such redemption, Defeasance shall have been effected with respect to such Securities pursuant to Section 13.2, such notice may state that such redemption shall be conditional upon the receipt by the Trustee or the Paying Agent for such Securities, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of, any premium and interest on and Additional Amounts with respect to such Securities and that if such money shall not have been so received such notice shall be of no force or effect and the Company shall not be required to redeem such Securities. In the event such notice of redemption contains such a condition and such money is not so received, the redemption shall not be made and within a reasonable time thereafter notice shall be given, in the same manner in which the notice of redemption was given, that such money was not so received and such redemption was not required to be made, and the Trustee or Paying Agent for the Securities otherwise to have been redeemed shall promptly return to the Holders thereof any of such Securities that had been surrendered for payment upon such redemption. (d) 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, subject to paragraph (c) of this Section, and shall be irrevocable. The notice if mailed in the manner provided above shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security. Section 11.5. Deposit of Redemption Price. Prior to 10:00 a.m., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all the Securities (or portions thereof) that are to be redeemed on that date. -72- Section 11.6. Payment of Securities Called for Redemption. (a) Except as provided in Section 11.4(c), after notice of redemption has been given, the Securities to be redeemed shall become due and payable on the Redemption Date at the place or places stated in such notice at the Redemption Price, together with accrued interest to the Redemption Date. Upon surrender of such Securities at a Place of Payment specified in such notice, such Securities shall be paid and redeemed by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, that, unless otherwise specified as contemplated by Section 3.1, installments of interest whose Stated Maturity is on or prior to the Redemption Date will 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 3.8. (b) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal of and any premium on and Additional Amounts with respect to such Security shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. Section 11.7. Securities Redeemed In Part. Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented and having the same Original Issue Date, Stated Maturity and terms. ARTICLE XII Sinking Funds Section 12.1. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.1 for such Securities. The minimum amount of any sinking fund payment provided for by the terms of any Securities of any series is herein referred to as a "mandatory sinking fund payment", and any sinking fund payment in excess of such minimum amount that is permitted to be made by the terms of such Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of any Securities of any series, the cash amount of any sinking fund -73- 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 such Securities. Section 12.2. Satisfaction of Sinking Fund Payments with Securities. In lieu of making all or any part of a mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option, at any time no more than 16 months and no less than 60 days prior to the date on which such sinking fund payment is due, deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired by the Company, except Securities of such series that have been redeemed through the application of mandatory or optional sinking fund payments pursuant to the terms of the Securities of such series, accompanied by a Company Order instructing the Trustee to credit such obligations and stating that the Securities of such series were originally issued by the Company by way of bona fide sale or other negotiation for value; provided, that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price for such Securities, as specified in the Securities so to be redeemed, 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. (a) Not less than 60 days prior 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 such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash in the currency in which the Securities of such series are payable (except as provided pursuant to Section 3.1) and the portion thereof, if any, that is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and stating the basis for such credit and that such Securities have not been previously so credited, and will also deliver to the Trustee any Securities to be so delivered. Such Officers' Certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the succeeding sinking fund payment date. In the case of the failure of the Company to deliver such Officers' Certificate (or, as required by this Indenture, the Securities specified in such Officers' Certificate) by the due date therefor, the sinking fund payment due on the succeeding sinking fund payment date for such series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the Securities of such series subject to a mandatory sinking fund payment without the right to deliver or credit securities as provided in Section 12.2 -74- and without the right to make the optional sinking fund payment with respect to such series at such time. (b) Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made with respect to the Securities of any particular series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date immediately following the date of such payment) to the redemption of Securities of such series at the Redemption Price specified in such Securities with respect to the sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee (or, if the Company is acting as its own Paying Agent, segregated and held in trust by the Company as provided in Section 10.3) for such series and together with such payment (or such amount so segregated) shall be applied in accordance with the provisions of this Section 12.3. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee (or if the Company is acting as its own Paying Agent, segregated and held in trust as provided in Section 10.3) on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities of such series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity. 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 Section 11.6. On or before each sinking fund payment date, the Company shall pay to the Trustee (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) in cash a sum in the currency in which Securities of such series are payable (except as provided pursuant to Section 3.1) equal to the principal and any premium and interest accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 12.3 and any Additional Amounts with respect thereto. (c) Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to the Securities of such series, except that if the notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee (or the Company, if the Company is then acting as its own Paying Agent) -75- shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company) for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of the Securities of such series; provided, that in case such default or Event of Default shall have been cured or waived herein, such moneys shall thereafter be applied on the next sinking fund payment date for the Securities of such series on which such moneys may be applied pursuant to the provisions of this Section 12.3. ARTICLE XIII Defeasance and Covenant Defeasance Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option at any time, to have Section 13.2 or Section 13.3 applied to any Securities or any series of Securities designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2 or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon compliance with the conditions set forth below in this Article. Section 13.2. Defeasance and Discharge. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities 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 proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set forth in such Section, payments in respect of the principal of, any premium and interest on and any Additional Amounts with respect to such Securities when payments are due, (b) the Company's obligations with respect to such Securities under Sections 3.6, 3.7, 10.2 and 10.3, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) the provisions of this Article. Subject -76- to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.3 applied to such Securities. Section 13.3. Covenant Defeasance. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (a) the Company shall be released from its obligations under Sections 8.1, 10.8 and 10.9 and any covenants provided pursuant to Section 3.1(o), 9.1(a), 9.1(c) or 9.1(f) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Sections 5.1(d) (with respect to any of Sections 8.1, 10.8 and 10.9 and any covenants provided pursuant to Sections 3.1(o), 9.1(a), 9.1(c) or 9.1(f)), Section 5.1(e), (f) and (i) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that, with respect to such Securities, 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, 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. Notwithstanding anything herein to the contrary, no Covenant Defeasance shall release any successor Person referred to in Article VIII from its obligations to assume the obligations of the Company under Section 6.7 as a condition to the consummation of any transaction contemplated by Section 8.1. Section 13.4. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of Securities, as the case may be: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9 and agrees to comply with the provisions of this Article 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, (i) money in an amount or (ii) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount or (iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the -77- Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of, any premium and interest on and any Additional Amounts with respect to such Securities on the respective Stated Maturities or Redemption Dates in accordance with the terms of this Indenture and such Securities. (b) In the event of an election to have Section 13.2 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize income, gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. (c) In the event of an election to have Section 13.3 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. (d) The Company shall have delivered to the Trustee an Officers' Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. (e) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.1(g) and (h), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act). -78- (g) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder. (h) If the money and/or Government Obligations deposited in trust pursuant to this Section are sufficient to pay and discharge such Securities on a Redemption Date, then at or prior to the time of such deposit, either notice of such redemption shall have been given in accordance with Section 11.4 or the Company shall have irrevocably instructed the Trustee to give such notice of redemption and arrangements satisfactory to the Trustee for the giving of such notice by the Trustee in the name, and at the expense, of the Company shall have been made. (i) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions. (a) Subject to the provisions of the last paragraph of Section 10.3, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.6, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 13.4 in respect of any Securities 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 such 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 principal and any premium, interest and Additional Amounts, but money so held in trust 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 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 Outstanding Securities. (c) Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon a Company Request any money or Government Obligations held by it as provided in Section 13.4 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered -79- to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities. Section 13.6. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 13.2 or 13.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.5 with respect to such Securities in accordance with this Article; provided, that if the Company makes any payment of principal of, any premium or interest on or any Additional Amounts with respect to any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust. Section 13.7. Qualifying Trustee. Any trustee appointed pursuant to Section 13.4 for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form reasonably acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related Defeasance or Covenant Defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee. 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. -80- In Witness Whereof, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written. MUTUAL RISK MANAGEMENT LTD., as Issuer By __________________________________ Name: Title: Attest: ______________________________________ THE CHASE MANHATTAN BANK By _________________________________ Name: Title: Attest: ______________________________________ -81- State of New York ) ) ss.: County of New York ) On the ____ day of ___________, ____, before me personally came ______________________, to me known, who, being by me duly sworn, did depose and say that he is ______________________ of Mutual Risk Management Ltd., one of the corporations described in and which executed the foregoing instrument, and that he signed his name thereto by like authority. _____________________________ State of New York ) ) ss.: County of New York ) On the ____ day of ___________, ____, before me personally came ___________________________, to me known, who, being by me duly sworn, did depose and say that he is ____________________ of The Chase Manhattan Bank, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. _____________________________ -82- EX-4.2 4 FORM OF INDENTURE SENIOR NOTES MUTUAL GROUP Exhibit 4.2 ========================================================== MUTUAL GROUP, LTD, Issuer MUTUAL RISK MANAGEMENT LTD. Guarantor TO THE CHASE MANHATTAN BANK as Trustee -------------- Senior Indenture Dated as of ________ __, 2000 -------------- ========================================================== TABLE OF CONTENTS ----------
Page ---- Recitals Of The Company ARTICLE I Definitions And Other Provisions Of General Application Section 1.1. Definitions............................................ 1 Section 1.2. Compliance Certificates and Opinions................... 9 Section 1.3. Forms of Documents Delivered to Trustee................ 10 Section 1.4. Acts of Holders; Record Dates.......................... 10 Section 1.5. Notices, Etc., to Trustee, Company and Guarantor....... 12 Section 1.6. Notice to Holders; Waiver.............................. 13 Section 1.7. Conflict with Trust Indenture Act...................... 13 Section 1.8. Effect of Headings and Table of Contents............... 13 Section 1.9. Successors and Assigns................................. 14 Section 1.10. Separability Clause.................................... 14 Section 1.11. Benefits of Indenture.................................. 14 Section 1.12. Governing Law.......................................... 14 Section 1.13. Non-Business Days...................................... 14 Section 1.14. Indenture and Securities Solely Corporate Obligations.. 14 Section 1.15. Submission to Jurisdiction............................. 15 ARTICLE II Security Forms Section 2.1. Forms Generally........................................ 16 Section 2.2. Form of Face of Security............................... 16 Section 2.3. Form of Reverse of Security............................ 18 Section 2.4. Additional Provisions Required in Global Security...... 20 Section 2.5. Additional Provisions Required in Guaranteed Security.. 21 Section 2.6. Form of Trustee's Certificate of Authentication........ 21
- -------------- Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. ARTICLE III The Securities Section 3.1. Title and Terms.................................................. 22 Section 3.2. Denominations.................................................... 24 Section 3.3. Execution, Authentication, Delivery and Dating................... 25 Section 3.4. Temporary Securities............................................. 26 Section 3.5. Global Securities................................................ 27 Section 3.6. Registration, Transfer and Exchange.............................. 28 Section 3.8. Payment of Interest; Interest Rights Preserved................... 31 Section 3.9. Persons Deemed Owners............................................ 32 Section 3.10. Cancellation..................................................... 33 Section 3.11. Computation of Interest.......................................... 33 Section 3.12. Shortening and Extending Stated Maturity......................... 33 Section 3.13. CUSIP Numbers.................................................... 34 ARTICLE IV Satisfaction And Discharge Section 4.1. Satisfaction and Discharge of Indenture.......................... 34 Section 4.2. Application of Trust Money....................................... 36 ARTICLE V Remedies Section 5.1. Events of Default................................................ 36 Section 5.2. Acceleration of Maturity; Rescission and Annulment............... 39 Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee....................................................... 40 Section 5.4. Trustee May File Proofs of Claim................................. 41 Section 5.5. Trustee May Enforce Claims Without Possession of Securities...... 42 Section 5.6. Application of Money Collected................................... 42 Section 5.7. Limitation on Suits.............................................. 43 Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest......................................................... 43 Section 5.9. Restoration of Rights and Remedies............................... 44 Section 5.10. Rights and Remedies Cumulative................................... 44 Section 5.11. Delay or Omission Not Waiver..................................... 44 Section 5.12. Control by Holders............................................... 44 Section 5.13. Waiver of Past Defaults.......................................... 45 Section 5.14. Undertaking for Costs............................................ 45 Section 5.15. Waiver of Usury, Stay or Extension Laws.......................... 46
ARTICLE VI The Trustee Section 6.1. Certain Duties and Responsibilities........................ 46 Section 6.2. Notice of Defaults......................................... 47 Section 6.3. Certain Rights of Trustee.................................. 47 Section 6.4. Not Responsible for Recitals or Issuance of Securities..... 49 Section 6.5. May Hold Securities........................................ 49 Section 6.6. Money Held in Trust........................................ 49 Section 6.7. Compensation and Reimbursement............................. 49 Section 6.8. Conflicting Interests...................................... 50 Section 6.9. Corporate Trustee Required; Eligibility.................... 51 Section 6.10. Resignation and Removal; Appointment of Successor.......... 51 Section 6.11. Acceptance of Appointment by Successor..................... 52 Section 6.12. Merger, Conversion, Consolidation or Succession to Business................................................ 54 Section 6.13. Preferential Collection of Claims Against Company or Guarantor............................................... 54 Section 6.14. Appointment of Authenticating Agent........................ 54 ARTICLE VII Holder's Lists And Reports By Trustee And Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders................................................. 56 Section 7.2. Preservation of Information; Communications to Holders..... 57 Section 7.3. Reports by Trustee......................................... 57 Section 7.4. Reports by Company......................................... 57 ARTICLE VIII Consolidation, Merger, Conveyance, Transfer Or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms....... 58 Section 8.2. Successor Substituted...................................... 59 Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms..... 59 Section 8.4. Successor Substituted...................................... 60 ARTICLE IX Supplemental Indentures Section 9.1. Supplemental Indentures Without Consent of Holders......... 61 Section 9.2. Supplemental Indentures With Consent of Holders............ 62
Section 9.3. Execution of Supplemental Indentures......................... 64 Section 9.4. Effect of Supplemental Indentures............................ 64 Section 9.5. Conformity with Trust Indenture Act.......................... 64 Section 9.6. Reference in Securities to Supplemental Indentures........... 64 ARTICLE X Covenants Section 10.1. Payment of Principal, Premium and Interest. ................ 65 Section 10.2. Maintenance of Office or Agency............................. 65 Section 10.3. Money for Security Payments to be Held in Trust............. 66 Section 10.4. Statement by Officers as to Compliance...................... 67 Section 10.5. Statement by Guarantor's Officers as to Compliance.......... 67 Section 10.6. Existence................................................... 68 Section 10.7. Payment of Taxes and Other Claims........................... 68 Section 10.8. Limitation on Liens on Stock of Significant Subsidiaries.... 68 Section 10.9. Limitation on Disposition of Stock of Significant Subsidiaries.................................... 69 Section 10.10. Original Issue Discount..................................... 69 Section 10.11. Waiver of Certain Covenants................................. 69 ARTICLE XI Redemption Of Securities Section 11.1. Applicability of Article.................................... 70 Section 11.2. Election to Redeem; Notice to Trustee....................... 70 Section 11.3. Selection of Securities to be Redeemed...................... 70 Section 11.4. Notice of Redemption........................................ 71 Section 11.5. Deposit of Redemption Price................................. 73 Section 11.6. Payment of Securities Called for Redemption................. 73 Section 11.7. Securities Redeemed in Part................................. 73 ARTICLE XII Sinking Funds Section 12.1. Applicability of Article.................................... 74 Section 12.2. Satisfaction of Sinking Fund Payments with Securities....... 74 Section 12.3. Redemption of Securities for Sinking Fund................... 74
ARTICLE XIII Defeasance And Covenant Defeasance Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance............................................... 76 Section 13.2. Defeasance and Discharge................................. 77 Section 13.3. Covenant Defeasance...................................... 77 Section 13.4. Conditions to Defeasance or Covenant Defeasance.......... 78 Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions.......................... 80 Section 13.6. Reinstatement............................................ 80 Section 13.7. Qualifying Trustee....................................... 80 ARTICLE XIV Guarantee And Indemnity Section 14.1. Applicability of Article................................. 81 Section 14.2. The Guarantee............................................ 81 Section 14.3. Net Payments............................................. 82 Section 14.4 Guarantee Unconditional, etc............................. 84 Section 14.5. Execution of Guarantee................................... 85 Section 14.6. Form of Guarantee........................................ 86 Section 14.7. Subrogation.............................................. 88 Section 14.8. Indemnity................................................ 88
....................................... Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section (s) 310(a)(1) ...................................... 6.9 (a)(2) ...................................... 6.9 (a)(3) ...................................... Not Applicable (a)(4) ...................................... Not Applicable (b) ...................................... 6.8 6.10 (s) 311(a) ...................................... 6.13 (b) ...................................... 6.13 (s) 312(a) ...................................... 7.1 7.2 (b) ...................................... 7.2 (c) ...................................... 7.2 (s) 313(a) ...................................... 7.3 (b) ...................................... 7.3 (c) ...................................... 7.3 (d) ...................................... 7.3 (s) 314(a) ...................................... 7.4 (a)(4) ...................................... 1.2 10.5 (b) ...................................... Not Applicable (c)(1) ...................................... 1.2 (c)(2) ...................................... 1.2 (c)(3) ...................................... Not Applicable (d) ...................................... Not Applicable (e) ...................................... 1.2 (s) 315(a) ...................................... 6.1 (b) ...................................... 6.2 (c) ...................................... 6.1 (d) ...................................... 6.1 (e) ...................................... 5.14 (s) 316(a) ...................................... 5.12 (a)(1)(A) ...................................... 5.2 5.12 (a)(1)(B) ...................................... 5.13 (a)(2) ...................................... Not Applicable (b) ...................................... 5.8 (c) ...................................... 1.4 (s) 317(a)(1) ...................................... 5.3 (a)(2) ...................................... 5.4 (b) ...................................... 10.3 (s) 318(a) ...................................... 10.7
- ------------------- NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. Senior Indenture, dated as of _________ ___, 2000, among MUTUAL GROUP LTD., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), having its principal office at One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, MUTUAL RISK MANAGEMENT LTD., a corporation duly organized and existing under the laws of Bermuda (herein called the "Guarantor"), having its principal office at 44 Church Street, Hamilton HM12 Bermuda, and THE CHASE MANHATTAN BANK, a New York banking corporation, as Trustee (herein called the "Trustee"). Recitals Of The Company Whereas, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its senior debentures, notes or other evidences of indebtedness (herein called the "Securities"), unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided; Whereas, all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done; Whereas, for value received, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Guarantee and the indemnity provided for herein; Whereas, all things necessary to make this Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done; and Whereas, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions. Now, Therefore, This Indenture Witnesseth: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows: ARTICLE 1 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 meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation"; (4) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (5) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; (6) whenever the context may require, any gender shall be deemed to include the others; (7) the words "hereby," "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 sub division; and (8) the word "or" is always used inclusively (for example the phrase "A or B" means "A or B or both," not "either A or B but not both"). "Act," when used with respect to any Holder, has the meaning specified in Section 1.4. "Additional Amounts" has the meaning specified in Section 14.3. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or con trolled 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. "Agent Member" means any member of, or participant in, the Depositary. "Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series. -2- "Board of Directors" means the board of directors of the Company or any duly authorized committee of that 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 any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee is closed for business. "Calculation Agent," with respect to Securities of any series that bear interest determined by reference to a Floating Rate Index, means the Person designated as Calculation Agent by the Company pursuant to Section 3.1 with respect to such series. "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 instrument 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 instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "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 at the date of execution of this Indenture is located at 450 West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services. "Covenant Defeasance" has the meaning specified in Section 13.3. "Debt" means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent and without duplication, (i) every obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable); (v) every capital lease obligation of such Person; (vi) every obligation of such Person pursuant to derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in -3- clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any obligation of the type referred to in clauses (i) through (vii). "Defaulted Interest" has the meaning specified in Section 3.8. "Defeasance" has the meaning specified in Section 13.2. "Depositary" means, with respect to Securities of any series issued or issuable in whole or in part in the form of one or more Global Securities, an organization registered as a clearing agency under the Exchange Act that is designated as Depositary for such Securities as contemplated by Section 3.1 with respect to such Securities. "Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2. "Dollar" or "$" means the currency of the United States of America that, as at the time of payment, is legal tender for the payment of public and private debts. "Event of Default," unless otherwise specified with respect to a series of Securities as contemplated by Section 3.1, has the meaning specified in Section 5.1. "Exchange Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 1.4(g). "Floating Rate Index" means, with respect to Securities of any series that bear a floating interest rate, the index specified as the Floating Rate Index by the Company pursuant to Section 3.1 with respect to such series. "Global Security" means a Security that evidences all or part of the Securities of any series and that bears the legend set forth in Section 2.4 (or such legend as may be specified as contemplated by Section 3.1) issued to the Depositary or its nominee for such series and registered in the name of such Depositary or its nominee. "Government Obligation" means (a) any security which is (i) a direct obligation of the United States of America or the government that issued the foreign currency in which such Securities are or may be payable for the payment of which the full faith and credit of the United States of America or such foreign government is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such foreign government the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such foreign government, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any depositary receipt -4- issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any Government Obligation which is specified in clause (a) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt. "Guarantee" means the unconditional guarantee of the payment of the principal of, any premium or interest on and all other amounts due on, or in respect of, the Securities and of the obligations of the Company under this Indenture and the Securities by the Guarantor, as more fully set forth in Article XIV. "Guaranteed Security" means a Security authenticated and delivered pursuant to this Indenture with a Guarantee endorsed on such Security, which Guarantee is substantially in the form described in Section 14.6 (except as otherwise permitted by Section 2.5) and executed pursuant to the provisions of Article XIV. "Guarantor" means the Person named as the "Guarantor" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person. "Guarantor's Board of Directors" means the board of directors of the Guarantor or any duly authorized committee of that board. "Guarantor Board Resolution" means a copy of a resolution, certified by the Secretary or an Assistant Secretary of the Guarantor to have been duly adopted by the Guarantor's Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Guarantor's Officers' Certificate" means a certificate signed by the Chairman of the Guarantor's Board of Directors, a Vice Chairman of the Guarantor's Board of Directors, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Guarantor and delivered to the Trustee. "Guarantor Request" and "Guarantor Order" mean, respectively, a written request or order signed in the name of the Guarantor by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Holder" means a Person in whose name a Security is registered in the Securities Register. -5- "Indenture" means this instrument as originally executed and as it may from time to time be amended or supplemented by one or more amendments or indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such amendment or supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such amendment or supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 3.1. "Interest Payment Date" means, with respect to any Security, the Stated Maturity of an installment of interest on such Security. "Investment Company Act" means the Investment Company Act of 1940 or any successor statute thereto, in each case as amended from time to time. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind. "Maturity" means, when used with respect to any Security, the date on which the principal of such Security or any 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" means a written notice of the kind specified in Section 5.1(d) or 5.1(e). "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Company or any Affiliate of the Company. "Original Issue Date" means the date of issuance specified as such in each Security. "Outstanding" means, when used with respect to any Securities, 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 in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent or the Guarantor shall act as 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 -6- pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; (iii) Securities as to which Defeasance has been effected pursuant to Section 13.2; (iv) Securities which have been paid pursuant to Section 3.7 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to the provisions of this Indenture, unless proof satisfactory to the Trustee is presented that any such Securities are held by a bona fide purchaser in whose hands such Securities are valid, binding and legal obligations of the Company; and (v) Securities converted or exchanged into other securities of the Company if the terms of such Securities provide for conversion or exchange pursuant to Section 3.1; provided, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or 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 that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or such other obligor. Upon the written request of the Trustee, the Company shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of the Company or any other obligor on the Securities or any Affiliate of the Company or such obligor, and subject to the provisions of Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. "Paying Agent" means any Person authorized by the Company to pay the principal of, any premium or interest on or other amounts with respect to any Securities on behalf of the Company and any Person authorized by the Guarantor to pay amounts due with respect to the Guarantee on behalf of the Guarantor. "Person" means any legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association or government or any agency or political subdivision thereof or any other entity of whatever nature. -7- "Place of Payment" means, with respect to the Securities of any series, the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to the Securities of that series are payable as specified pursuant to Section 3.1. "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. For the purposes of this definition, any Security authenticated and delivered under Section 3.7 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 fixed by or pursuant to this Indenture. "Regular Record Date" for the interest payable on any Interest Payment Date with respect to the Securities of a series means, unless otherwise provided pursuant to Section 3.1 with respect to Securities of such series, the date that is fifteen days next preceding such Interest Payment Date (whether or not a Business Day). "Responsible Officer," when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any senior trust officer, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Securities" or "Security" means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture. "Securities Act" means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 3.6. "Significant Subsidiary" means, in respect of any Person, a Subsidiary of such Person that constitutes a "significant subsidiary" of such Person as such term is defined in Rule 1-02(w) of Regulation S-X. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.8. -8- "Stated Maturity," when used with respect to any Security or any installment of principal thereof or interest thereon, or any Additional Amounts with respect thereto, 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, or such Additional Amounts are, due and payable, as such date may, in the case of the Stated Maturity of the principal on any Security, be shortened or extended as provided in such Security and this Indenture. "Subsidiary" means, in respect of any Person, a Person more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries, or by such Person and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and as in effect on the date of this Indenture; provided, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument, solely in its capacity as such and not in its individual capacity, until a successor Trustee shall have become such 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. Section 1.2 Compliance Certificates and Opinions. (a) Upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers' Certificate or a Guarantors' Officers' Certificate, as the case may be,, stating that all conditions precedent (including covenants compliance with which constitutes a condition 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 (including covenants compliance with which constitutes a condition 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 the certificates provided pursuant to Sections 10.4 and 10.5) shall include, (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; -9- (ii) 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; (iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 1.3 Forms 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 several documents. (b) Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows after reasonable inquiry that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, unless such counsel knows after reasonable inquiry 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. (d) Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Guarantor's Board Resolution, Officers' Certificate, Guarantor's Officers' Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other inadvertent or unintentional error or omission shall be discovered therein, a new document or instrument may be substituted therefor in corrected form with the same force and effect as if originally received in the corrected form and, irrespective of the date or dates of the actual execution and/or delivery thereof, such substitute document or instrument shall be deemed to have been executed and/or delivered as of the date or dates required with respect to the document or instrument for which it is substituted. Without limiting the generality of the foregoing, any Securities issued under the authority of such defective document or instrument shall nevertheless be the valid obligations of the Company entitled to the benefits of this Indenture equally and ratably with all other Outstanding Securities. -10- Section 1.4 Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made 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 agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments is or are delivered to the Trustee and, where it is hereby expressly required, to the Company or the Guarantor or both of them. 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 conclusive in favor of the Trustee, the Company and the Guarantor and any agent of the Trustee, the Company and the Guarantor, 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 the 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 or her the execution thereof. Where such execution is by a Person acting in other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution by any Person 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 Securities Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by 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, the Company or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security. (e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided, that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in paragraph (f) of this Section. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from -11- setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (f) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (g) With respect to any record date set pursuant to paragraph (e) or (f) of this Section, the party hereto that sets such record date may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided, that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. (h) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Section 1.5 Notices, Etc., to Trustee, Company and Guarantor. -12- Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with: (a) the Trustee by any Holder, the Company or the Guarantor 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 (b) the Company or the Guarantor, as the case may be, by the Trustee or by any Holder shall be sufficient for every purpose (except as otherwise provided in Section 5.1) hereunder if in writing and mailed, first-class, postage prepaid, to the Company or the Guarantor, as the case may be, addressed to it at the address of its principal office specified in the first paragraph of this Instrument, Attention: General Counsel, in the case of the Company, and Attention: General Counsel, in the case of the Guarantor, or at any other address previously furnished in writing to the Trustee by the Company or the Guarantor, as the case may be. Section 1.6 Notice to Holders; Waiver. 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 the address of such Holder as it appears in the Securities Register, not later than the latest date (if any), and not earlier than the earliest date (if any), 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. If, by reason of the suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders when said notice is required to be given pursuant to any provision of this Indenture or any Security, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient notification for every pur pose hereunder. 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. Section 1.7 Conflict with Trust Indenture Act. If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. -13- 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. All covenants and agreements in this Indenture by the Guarantor shall bind its successors and assigns, whether so expressed or not. Section 1.1 Separability Clause. If 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 1.1 Benefits of Indenture. Nothing in this Indenture or in the Securities or the Guarantee, express or implied, shall give to any Person, other than the parties hereto and their successors and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 1.1 Governing Law. This Indenture, the Securities and the Guarantee shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws provisions thereof. Section 1.1 Non-Business Days. If any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest, premium or principal on or other amounts in respect of such Security need not be made on such date, but may be made on the next succeeding Business Day (and no interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, until such next succeeding Business Day) except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day (in each case with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity). -14- Section 1.14 Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of, any premium or interest on or any other amounts with respect to any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or the Guarantor or of any successor company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of this Indenture and the issue of the Securities. Section 1.15 Submission to Jurisdiction. Each of the Company and Guarantor agrees that any judicial proceedings instituted in relation to any matter arising under this Indenture on the Securities may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Indenture, each of the Company and the Guarantor hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. Each of the Company and the Guarantor also irrevocably and unconditionally waives for the benefit of the Trustee and the Holders of the Securities any immunity from jurisdiction and any immunity from legal process (whether through services of notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of this Indenture. Each of the Company and the Guarantor hereby irrevocably designates and appoints for the benefit of the Trustee and the Holders of the Securities for the term of this Indenture, CT Corporation, 111 8th Avenue, New York, New York 10011, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to Mutual Group Ltd., One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, Attention: General Counsel and to Mutual Risk Management Ltd., 44 Church Street, Hamilton HM12 Bermuda, Attention: General Counsel), brought against it with respect to any such proceeding in any such court in The City of New York, such service being hereby acknowledged by each of the Company and the Guarantor to be effective and binding service on it in every respect whether or not the Company or the Guarantor shall then be doing or shall have at any time done business in New York. Such appointment shall be irrevocable so long as any of the Securities or the obligations of the Company or the Guarantor hereunder remain outstanding until the appointment of a successor by the Company or the Guarantor and such successor's acceptance of such appointment. Upon such acceptance, the Company and the Guarantor shall notify the Trustee of the name and address of such successor. Each of the Company and the Guarantor further agrees for the benefit of the Trustee and the Holders of the Securities to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said CT Corporation in full force and effect so long as any of the Securities or the obligations of the Company or the Guarantor hereunder shall be outstanding. The Trustee shall not be obligated and shall have no responsibility with respect to any failure by -15- the Company or the Guarantor to take any such action. Nothing herein shall affect the right of the Trustee or any Holder to institute proceedings against the Company or the Guarantor in the courts of any other jurisdiction or jurisdictions. ARTICLE II Security Forms Section 2.1 Forms Generally. The Securities of each series and the Trustee's certificate of authentication shall be in substantially the form or forms set forth in this Article, or in such other forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the 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 with respect to the authentication and delivery of such Securities. The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods, if required by any securities exchange on which the Securities may be listed, on a steel engraved border or steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such securities. Section 2.2 Form of Face of Security. Mutual Group, Ltd. [Title of Security] No. $ MUTUAL GROUP, LTD., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the "Company", which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to _______________, or registered assigns, the principal sum of __________ Dollars on __________ __, ___ [if the Security is a Global Security, then insert-- or such other principal amount represented hereby as may be set forth in the records -16- of the Securities Registrar hereinafter referred to in accordance with the Indenture,] [; provided, that the Company may shorten or extend the Stated Maturity of the principal of this Security to a date not earlier than ________ and not later than ________ at any time on one or more occasions, subject to certain conditions specified in Section 3.12 of the Indenture.] The Company further promises to pay interest on said principal sum from _______________, ___ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [monthly] [quarterly] [semi-annually] in arrears on [insert applicable Interest Payment Dates] of each year, commencing _______________, ___, at the rate [if fixed rate, insert -- of ____%] [if floating rate, insert - --- equal to _____% in excess of the Floating Rate Index] per annum, until the principal hereof is paid or duly provided for or made available for payment [if applicable, insert-- ; provided, that any overdue principal, premium, Additional Amounts and any overdue installment of interest shall bear additional interest at the rate [if fixed rate, insert --- of ____%] [if floating rate, insert --- equal to _____% in excess of the Floating Rate Index] per annum (to the extent that the payment of such interest shall be legally enforceable), compounded [monthly] [quarterly] [semi-annually], from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year of twelve 30- day months and the actual days elapsed in a partial month in such period. The amount of interest payable for any full interest period shall be computed by dividing the applicable rate per annum by [twelve/four/two]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment [if applicable, insert--, which shall be the [____________ or ____________] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date]. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (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 Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series 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 any premium and interest on this Security will be made at the office or agency of the Company maintained for that purpose in the [insert Place of Payment], in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert--; provided, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by wire transfer to an account at a banking institution in the United States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date]. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER -17- PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. MUTUAL GROUP, LTD. By: ________________________________________ Name: Title: Attest: __________________________________ [Secretary or Assistant Secretary] Section 2.3. Form of Reverse of Security. This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under the Senior Indenture, dated as of _____ __, ____ (herein called the "Indenture"), among the Company, Mutual Risk Management Ltd. (the "Guarantor", which term includes any successor guarantor under the Indenture) and The Chase Manhattan Bank as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert--, limited in aggregate principal amount to $_____________]. All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture. The terms of this Security include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act. This Security is subject to all such terms and the Holder of this Security is referred to the Indenture and the Trust Indenture Act for a statement of such terms. -18- [If applicable, insert--This Security is entitled to the benefit of the Guarantee of the Guarantor. Reference is made to Article XIV of the Indenture and to the Guarantee for terms relating to such Guarantee.] [If applicable, insert--The Company may at any time, at its option, on or after _________, ____, and subject to the terms and conditions of Article XI of the Indenture, redeem this Security in whole at any time or in part from time to time, at [if applicable, insert-- the following Redemption Prices (expressed as percentages of the principal amount hereof): If redeemed during the 12-month period beginning _____________, Redemption Year Price ---- ---------- and thereafter at a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest to but excluding the date fixed for redemption,] [a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest to but excluding the date fixed for redemption.] [If the Security is subject to redemption of any kind, insert--In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.] [If applicable, insert - The Securities of this series are not redeemable prior to Stated Maturity.] [The Indenture contains provisions for satisfaction and discharge of [the entire indebtedness of] [or] [certain restrictive covenants and Events of Default with respect to] this Security [, in each case] upon compliance by the Company or the Guarantor with certain conditions set forth in the Indenture.] The Indenture permits, with certain exceptions as therein provided, the Company, the Guarantor and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in any manner the rights and obligations of the Company or the Guarantor, as the case may be, and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company or the Guarantor, as the case may be, 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 Security shall be -19- conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security 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 Security. [If the Security is not a Discount Security, insert--As provided in and subject to the provisions of the Indenture, if an Event of Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of this series may declare the principal amount of all the Securities of this series to be due and payable immediately, by a notice in writing to the Company and, in certain cases, the Guarantor (and to the Trustee if given by Holders); and upon any such declaration the principal amount of and the accrued interest on all the Securities of this series shall become immediately due and payable.] [If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.] No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Indenture for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Securities of this series, of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $____________ and any integral multiple of $____________ in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. -20- The Company, the Guarantor, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary. This Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof. Section 2.4. Additional Provisions Required in Global Security. Unless otherwise specified as contemplated by Section 3.1, any Global Security issued hereunder shall, in addition to the provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the following form: "THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND 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, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE." Section 2.5. Additional Provisions Required in Guaranteed Security. Any Guaranteed Security issued hereunder shall, in addition to the provisions contained in Sections 2.2, 2.3 and 2.4 (if applicable), have endorsed thereon the Guarantee in substantially the form set forth in Section 14.6, or in such other form as shall be established by or pursuant to a Guarantor Board Resolution, or established in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture. Section 2.6. Form of Trustee's Certificate of Authentication. The Trustee's certificates 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. Dated: THE CHASE MANHATTAN BANK, -21- as Trustee By:___________________________ Authorized officer -22- ARTICLE III The Securities Section 3.1. Title and Terms. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and set forth in an Officers' Certificate or established in one or more indentures supplemental hereto: (a) the title of the securities of such series, which shall distinguish the Securities of the series from all other Securities; (b) the limit, if any, upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to the provisions of this Indenture and except for any Securities that, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder); (c) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the method of determination thereof, and any dates on which or circumstances under which, the Company shall have the right to extend or shorten such Stated Maturity or Maturities; (d) the rate or rates at which the Securities of such series shall bear interest, if any, and, if such interest is determined by reference to a floating interest rate, the Floating Rate Index and Calculation Agent, the date or dates from which any 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 the method by which any of the foregoing shall be determined; (e) the extent, if any, to which the Securities of such series or the related Guarantee will be secured; (f) the place or places where the principal of and any premium and interest on the Securities of such series shall be payable, the place or places where the Securities of such series and any related Guarantee may be presented for registration of transfer or exchange, any restrictions that may be applicable to any such transfer or exchange in addition to or in lieu of those set forth herein, and the place or places where notices and demands to or upon the Company or the Guarantor in respect of the Securities of such series and any related Guarantee may be made; -23- (g) the obligation of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions, or at the option of the Company or a Holder thereof, and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation or option; (h) if the amount of principal of or any premium or interest on any Securities of such series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined. (i) if other than Dollars, the currency or currencies (including any currency unit or units) in which the principal of and any premium and interest on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated and the manner of determining the equivalent thereof in Dollars for any purpose, including for purposes of the definition of Outstanding; (j) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable or the manner in which such amount shall be determined; (k) if other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof; (l) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined; (m) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.2 or Section 13.3 or both such Sections; (n) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends that shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.4 and any circumstances in addition to or in lieu of those set forth -24- in Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof; (o) the additions, modifications or deletions, if any, in the Events of Default or covenants of the Company or the Guarantor set forth herein with respect to the Securities of such series; (p) the appointment of any Paying Agent or agents for the Securities of such series; (q) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange; (r) the denominations in which any Securities of such series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof; (s) if applicable, whether such Securities shall not be Guaranteed Securities; and (t) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.1(e)). All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any indenture supplemental hereto. 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. Section 3.2. Denominations. The Securities of each series shall be issuable only in registered form without coupons and in denominations of $1,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified as contemplated by Section 3.1. -25- Section 3.3. Execution, Authentication, Delivery and Dating. (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents 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. 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. (b) 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 by the Company to the Trustee for authentication with, if applicable, the Guarantee endorsed thereon duly executed by the Guarantor, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by 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 shall be fully protected in relying upon, an Opinion of Counsel stating: (i) if the form 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; (ii) if the terms 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 (iii) 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 terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. If 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 will affect the Trustee's own rights, duties, indemnities or immunities under the -26- Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee. (c) Notwithstanding the provisions of Section 3.1 and of paragraph (b) of this Section, 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 paragraph (b) of this Section at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. (d) 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 the manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. 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 3.10, 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. (e) Each Security shall be dated the date of its authentication. Section 3.4. Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities that 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, if applicable, a temporary Guarantee endorsed thereon duly executed by the Guarantor and 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. A temporary Guarantee shall be substantially in the form of the definitive Guarantee in lieu of which it is issued, but with such omissions, insertions and variations as may be appropriate for a temporary Guarantee, all as may be determined by the Guarantor. (b) If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at -27- the office or agency of the Company designated for that purpose, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations having the same Original Issue Date and Stated Maturity and having the same terms as such temporary Securities, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. 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. Section 3.5. Global Securities. (a) Each Global Security issued under this Indenture shall be registered in the name of the Depositary designated by the Company for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. (b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (i) such Depositary advises the Trustee and the Company in writing that such Depositary is no longer willing or able to properly discharge its responsibilities as Depositary with respect to such Global Security and no qualified successor is appointed by the Company within 90 days of receipt by the Company of such notice, (ii) such Depositary has ceased to be a clearing agency registered under the Exchange Act and no qualified successor is appointed by the Company within 90 days after its receipt of notice or its becoming aware of such event, (iii) the Company executes and delivers to the Trustee a Company Order stating that the Company elects to terminate the book-entry system through the Depositary, or (iv) there shall have occurred and be continuing an Event of Default with respect to such Global Security. (c) If any Global Security is to be exchanged for other Securities or canceled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Securities Registrar for exchange or cancellation as provided in this Article. If any Global Security is to be exchanged for other Securities or canceled in part, or if another Security is to be exchanged in whole or in part for a beneficial interest in any Global Security, then either (i) such Global Security shall be so surrendered for exchange or cancellation as provided in this Article or (ii) the principal amount thereof shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or canceled, or equal to the principal amount of such other Security to be so exchanged for a beneficial interest therein, as the case -28- may be, by means of an appropriate adjustment made on the records of the Securities Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Security by the Depositary, accompanied by registration instructions, the Trustee shall, subject to this Section and as otherwise provided in this Article, authenticate and deliver any Securities issuable in exchange for such Global Security (or any portion thereof) in accordance with the instructions of the Depositary, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. The Trustee shall not be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. (d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Article, Section 9.6 or 11.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. (e) The Depositary or its nominee, as the registered owner of a Global Security, shall be the Holder of such Global Security for all purposes under this Indenture and the Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly, any such owner's beneficial interest in a Global Security shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members. Neither the Trustee nor the Securities Registrar shall have any liability in respect of any transfers effected by the Depositary. (f) The rights of owners of beneficial interests in a Global Security shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such owners and the Depositary and/or its Agent Members. (g) The registered holder of a Global Security may grant proxies to any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture, the Guarantee and the Securities. Section 3.6. Registration, Transfer and Exchange. (a) The Company shall cause to be kept at the Corporate Trust Office a 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 -29- (the "Securities Register"). The Trustee is hereby appointed "Securities 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 a series at the office or agency of the Company designated for that purpose, 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 like tenor and aggregate principal amount, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. (c) At the option of the Holder, Securities of a series may be exchanged for other Securities of the same series of any authorized denominations and of like tenor and aggregate principal amount, 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 that the Holder making the exchange is entitled to receive, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. (d) All Securities issued upon any 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 transfer or exchange. (e) Every Security presented or surrendered for 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 Securities Registrar, duly executed by the Holder thereof or such Holder's attorney duly authorized in writing. (f) No service charge shall be made to a Holder for any transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Securities. (g) The Company shall not be required (i) to issue, register the transfer of or exchange any Securities of that series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities 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. (h) Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any -30- other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities. (a) If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series, of like tenor and aggregate principal amount and bearing a number not contemporaneously outstanding, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. (b) If there shall be delivered to the Company, the Guarantor, if applicable 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 harmless, then, in the absence of notice to the Company, the Guarantor or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series, of like tenor and principal amount as such destroyed, lost or stolen Security and bearing a number not contemporaneously outstanding, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. (c) If 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 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) connected therewith. (e) Every new Security of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and the Guarantor, if applicable, whether or not the mutilated, 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 the same series duly issued hereunder. (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. -31- Section 3.8. Payment of Interest; Interest Rights Preserved. (a) Except as otherwise contemplated by Section 3.1 with respect to any series of Securities, interest on any Security of any series that 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 in respect of Securities of such series, except that, unless otherwise provided in the Securities of such series, interest payable on the Stated Maturity, redemption or repayment of the principal of a Security shall be paid to the Person to whom principal is paid. The initial payment of interest on any Security of any series that is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 3.1 with respect to the related series of Securities. (b) Any interest on any Security of any series that is due and payable, but is not timely paid or duly provided for, on any Interest Payment Date for Securities of such series (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date 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 paragraph (i) or (ii) below: (i) The Company or the Guarantor, if applicable, 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 for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company or the Guarantor, if applicable, 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 at least 30 days prior to such date, and at the same time the Company or the Guarantor, if applicable, 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. Thereupon the Trustee shall fix a 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 and the Guarantor, if applicable, of such Special Record Date and, in the name and at the expense of the Company or the Guarantor, if applicable, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in -32- Section 1.6, 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; or (ii) The Company or the Guarantor, if applicable, may 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 or the Guarantor, if applicable, to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. (c) Unless otherwise provided in or pursuant to this Indenture or any supplemental indenture, interest on the Securities of any series will be payable, at the option of the Company or the Guarantor, (i) by check mailed to the address of the Holder as such address appears in the Securities Register for the Securities of such series or (ii) by wire transfer to an account at a banking institution in the United States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date. Section 3.9. Persons Deemed Owners. (a) Prior to due presentment of a Security for registration of transfer, the Company, the Guarantor, 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, any premium and (subject to Section 3.8) interest on and any Additional Amounts with respect to such Security and for all other purposes whatsoever, and none of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary. (b) No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial -33- ownership interests. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominee) as Holder of any Security. Section 3.10. Cancellation. All Securities surrendered for payment, redemption, 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 any such Securities delivered to the Trustee for any purpose shall be promptly canceled by it. The Company or the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company or the Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder that 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 in accordance with its customary practices and the Trustee shall deliver to the Company a certificate of such disposition. Section 3.11. 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 for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in any partial month in such period, and interest on the Securities of each series for a full period shall be computed by dividing the rate per annum by the number of interest periods that together constitute a full twelve months. Section 3.12. Shortening and Extending Stated Maturity. (a) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to shorten the Stated Maturity of the principal of the Securities of such series at any time to any date not earlier than the first date on which the Company has the right to redeem the Securities of such series. In the event that the Company elects to shorten the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. -34- (b) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to extend the Stated Maturity of the principal of the Securities of such series at any time. In the event that the Company elects to extend the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. Section 3.13. 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 and other similar or related matters as a convenience to Holders; provided, that any such notice or other materials may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or other materials 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. ARTICLE IV Satisfaction and Discharge Section 4.1. Satisfaction and Discharge of Indenture. Upon a Company Request by the Company or a Guarantor Request by the Guarantor, this Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for, and as otherwise provided in this Section) and the Trustee, on the demand of and at the expense of the Company or the Guarantor, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) either (i) all Securities theretofore authenticated and delivered (other than (A) Securities that have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.7 and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or the Guarantor and there after repaid to the Company or the Guarantor or discharged from such trust as provided in Section 10.3) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation -35- (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year of the date of deposit, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company or the Guarantor, and the Company or the Guarantor, in the case of paragraph (ii)(A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose (x) an amount in the currency or currencies in which the Securities of such series are payable, (y) 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 (z) a combination thereof, in each case where any Government Obligations are deposited, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal, any premium and interest and any Additional Amounts in respect thereof to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (b) the Company or the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company and the Guarantor; and (c) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel or the Guarantor has delivered to the Trustee a Guarantor's 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. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company and the Guarantor to the Trustee under Section 6.7, the obligations of the Company and the Guarantor to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to paragraph (a)(ii) of this Section, the obligations of the Trustee under Section 4.2 and Section 10.3(e) shall survive. The Company and the Guarantor, jointly and severally, agree to pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to this Section or the -36- 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 Outstanding Securities. Section 4.2. Application of Trust Money. Subject to the provisions of Section 10.3(e), all money and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by the Trustee, 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 its own Paying Agent or the Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium, interest and Additional Amounts for the payment of which such money and Government Obligations (including the proceeds thereof) have been deposited with or received by the Trustee. ARTICLE V REMEDIES Section 5.1. Events of Default. "Event of Default", wherever used herein with respect to the 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) except as may be specified pursuant to Section 3.1: (a) default in the payment of any interest upon any Security of that series, or any Additional Amounts payable with respect thereto, when such interest becomes, or such Additional Amounts become, due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of or any premium on any Security of that series at its Maturity, or any Additional Amounts payable with respect thereto, when such principal or premium becomes, or such Additional Amounts become, due and payable at their Maturity; or (c) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of such series; or -37- (d) default in the performance, or breach, of any covenant or warranty of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is specifically dealt with elsewhere in this Section or that has expressly been included in this Indenture solely for the benefit of series of Securities other than such series), and continuance of such default or breach for a period of 30 days after there has been given, by registered or certified mail, to the Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) by the Trustee or to the Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) 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, unless the Trustee, or the Trustee and the Holders of a principal amount of Securities of such series not less than the principal amount of Securities that gave such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; or (e) a default under any (i) indebtedness for any money borrowed by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) (includ ing a default with respect to Securities of any series other than that series), (ii) mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series), or (iii) guarantee by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that Series) of payment for money borrowed, which default shall consist of a payment default at the stated maturity thereof, after giving effect to any applicable grace period, or shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness or accelerated indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) by the Trustee or to the Company, the Guarantor (if a Guarantee is in effect with respect to Securities of that series) 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 and requiring the Company or the Guarantor, as the case may be, to cause such indebtedness or accelerated indebtedness to be discharged or cause such acceleration to be rescinded or annulled, as the case may be, and stating that such notice is a "Notice of Default" hereunder; provided, that a default shall exist under this subsection only if the aggregate principal -38- amount outstanding under all such indebtedness that is so in default or has become due prior to the date on which it would otherwise become due and payable exceeds $40,000,000; or (f) the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $40,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or (g) the entry by a court having jurisdiction in the premises of a decree or order adjudging the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) or of any substantial part of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) property, or ordering the winding up or liquidation of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) 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 (h) the filing by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar 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 other similar official of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) or of any substantial part of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) property, or the making by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) of an assignment for the benefit of creditors, or the admission by it in writing of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) inability to pay its debts generally as they become due, or the authorization of any such action by the Company's or the Guarantor's Board of Directors; or -39- (i) any Guarantee with respect to the Securities of any series ceases to be in full force and effect or the Guarantor denies in writing that it has liability under the Guarantee with respect to the Securities of such series (other than by reason of the termination of this Indenture); or (j) any other Event of Default provided with respect to Securities of that series. 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 or Default specified in Section 5.1(g) or (h)) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount of and all unpaid accrued interest and premium on all of the Securities of that series (or, if the Securities of that series are Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms of that series) to be due and payable immediately, by a notice in writing to the Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) of, accrued interest and premium on all of the Securities of such series shall become immediately due and payable. If an Event of Default specified in Section 5.1(g) or (h) occurs, all unpaid principal of and accrued interest and premium on the Outstanding Securities of that series (or such lesser amount as may be provided for in the Securities of such series) shall automatically become and 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 aggregate principal amount of the Outstanding -40- Securities of that series, by written notice to the Company, the Guarantor (if a Guarantee is in effect with respect to Securities of that series) and the Trustee, may rescind and annul such declaration and its consequences if (i) the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue installments of interest on all Securities of that series and any Additional Amounts with respect thereto, (B) the principal of and any premium on any Securities of that series which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and any interest thereon at the rate prescribed therefor in such Securities; (C) all overdue sinking fund payments with respect to Securities of such series and interest thereon at the rate prescribed therefor in such Securities, (D) to the extent that payment of such interest is lawful, interest upon overdue installments of interest and Additional Amounts at the rate prescribed therefor in such Securities, and (E) 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 (ii) 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. Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. (a) The Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) covenant that if (i) default is made in the payment of any installment of interest on or any Additional Amounts, payable with respect to such interest, with respect to any Security of any series when such interest or Additional -41- Amounts shall have become due and payable and such default continues for a period of 30 days, or (ii) default is made in the payment of the principal of or any premium on any Security or any Additional Amounts with respect thereto at the Maturity thereof, or (iii) default is made in the deposit of any sinking fund payment, when and as due by the terms of a Security of any series, the Company or the Guarantor, as the case may be, will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and any Additional Amounts and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any premium and interest at the rate prescribed therefor in such Securities, and, in addition thereto, all amounts owing to the Trustee, its agents and counsel under Section 6.7. (b) If the Company or the Guarantor, as the case may be, 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, the Guarantor or any other obligor upon such Security and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor or any other obligor upon such Security, 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 effectual 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. In case of any judicial proceeding relative to the Company, the Guarantor (or any other obligor upon the Securities), their respective property or their respective creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to -42- distribute the same; and 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 any amounts due the Trustee, its agents and counsel under Section 6.7. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or 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; provided, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. 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 all the amounts owing the Trustee, its agents and counsel under Section 6.7, 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 or property collected or to be applied by the Trustee pursuant to this Article with respect to a series of Securities 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 or property on account of principal or any premium 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, its agents and counsel under Section 6.7; Second: To the payment of the amounts then due and unpaid for principal of and any premium 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, any premium and interest, respectively; and -43- Third: The balance, if any, to the Person or Persons entitled thereto. Section 5.7. Limitation on Suits. Subject to Section 5.8, 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, assignee, trustee, liquidator, sequestor (or other similar official) or for any other remedy hereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (b) the Holders of not less than a majority in aggregate 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; (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding for 60 days ; and (e) 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 aggregate 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, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other 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 of any series shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.8) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit -44- for the enforcement of any such payment, and such right 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 Guarantor, 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 in Section 3.7(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. 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. The Holders of not less than a majority in aggregate 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 -45- (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, and (c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if a Responsible Officer or Officers of the Trustee shall, in good faith, determine that the proceeding so directed would be unjustly prejudicial to the Holders not joining in any such direction or involve the Trustee in personal liability. Section 5.13. Waiver of Past Defaults. (a) The Holders of not less than a majority in aggregate 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 Event of Default hereunder with respect to such series and its consequences, except an Event of Default: (i) in the payment of the principal of or any premium or interest on any Security of such series (unless such Event of Default has been cured and the Company or the Guarantor, if applicable, has paid to and deposited with the Trustee a sum sufficient to pay all matured installments of interest and all principal of and any premium on all Securities of that series due otherwise than by acceleration) or (ii) in respect of a covenant or provision hereof that under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. (b) Any such waiver shall be deemed to be on behalf of the Holders of all the Securities of such series. (c) Upon any such waiver, such Event of 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 Event of Default or impair any right consequent thereon. Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by its, his or her 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 -46- 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 and expenses, 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 or the Guarantor, 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 aggregate 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 any premium or interest on any Security on or after the Stated 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 and the Guarantor each (to the extent that it may lawfully do so) covenant 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 and the Guarantor each (to the extent that it may lawfully do so) hereby expressly waive 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 V1 THE TRUSTEE Section 6.1. Certain Duties and Responsibilities. The rights, immunities, duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, 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 reason able grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. 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. -47- Section 6.2. Notice of Defaults. If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default actually known to the Trustee within 90 days after it occurs unless such default shall have been cured or waived; provided, that except in the case of a default in the payment of the principal of or any premium or interest on any Securities of any series or in the making of any sinking fund payment payable with respect to Securities of any series, the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interest of Holders of Securities of that series; and provided, further, that in the case of any default of the character specified in Section 5.1(d) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" 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 protected in acting or refraining from acting in good faith upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, security or other paper or 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 or the Guarantor shall be sufficiently evidenced by a Company Request or Company Order or by a Guarantor Request or a Guarantor Order, as the case may be, and any resolution of the Board of Directors or the Guarantor's Board of Directors shall be sufficiently evidenced by a Board Resolution or by a Guarantor Board Resolution, as the case may be; (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 or, if such matter pertains to the Guarantor, a Guarantor's Officers' Certificate; -48- (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, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that 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, security or other paper or document, but the Trustee, in its discretion, may make such inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company and the Guarantor, if applicable, personally or by agent or attorney; (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; (h) the Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Indenture and no permissive power or authority available to the Trustee shall be construed to be a duty; (i) the Trustee shall not be charged with knowledge of any Event of Default unless either (i) a Responsible Officer of the Trustee assigned to its Corporate Trust Office shall have actual knowledge thereof or (ii) the Trustee shall have received notice thereof from the Company or a Holder; and (j) in the event that the Trustee is also acting as Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar hereunder, the rights and protections afforded to the Trustee pursuant to this Article shall also be afforded such Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar. -49- 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 Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture, of the Guarantee or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof. Section 6.5. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other agent of the Company or the Guarantor, 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 or the Guarantor with the same rights it would have if it were not Trustee, Authen ticating Agent, Paying Agent, Securities 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. (a) The Company and the Guarantor jointly and severally agree: (i) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder in such amounts as the Trustee shall agree from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (ii) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provi sion of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), -50- except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (iii)to indemnify the Trustee and its officers, directors, agents and employees for, and to hold them harmless against, any loss, liability, damage, claim or expense (including the reasonable compensation, expenses and disbursements of its agents and counsel) incurred without negligence or bad faith, arising out of or in connection with the acceptance or administration of this trust or the performance of the Trustee's duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. (b) The Trustee shall have a lien prior to the Securities upon all property and funds held or collected by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section, except with respect to funds held in trust for the benefit of the Holders of particular Securities. (c) Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(g) or 5.1(h) occurs, the expenses (including the reasonable charges and expenses of its agents and counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal, state or foreign bankruptcy, insolvency or other similar law. (d) The obligations of the Company under this Section shall survive the satisfaction and discharge of this Indenture, the defeasance of the Securities and the earlier resignation or removal of the Trustee. Section 6.8. Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or under any other indenture with respect to securities issued by the Company or issued or guaranteed by the Guarantor. -51- Section 6.9. Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be the Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person 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 with respect to the Securities of any series 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. Neither the Company nor any Person directly or indirectly controlling, controlled by or under common control with the Company shall serve as Trustee for the Securities of any series issued hereunder. 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 under Section 6.11. (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 an instrument of acceptance by a successor Trustee 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 aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. (d) If at any time: (i) 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 (ii) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or by any such Holder, or -52- (iii)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, (x) the Company, by a Board Resolution, may remove the Trustee with respect to the Securities of all series issued hereunder or (y) subject to Section 5.14, any such Holder may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to the Securities of all series issued hereunder 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 with respect to the Securities of that or those series. If, 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 aggregate 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, become the successor Trustee with respect to the Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so 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, subject to Section 5.14, on behalf of such Holder 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 to all Holders of Securities of such series. 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 to the retiring Trustee an instrument -53- 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 Guarantor (if a Guarantee is in effect with respect to any Securities) 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 (i) 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, (ii) 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 (iii) 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 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, upon payment of its charges, 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 or the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. -54- (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 of 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, and in case any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate of authentication shall have the full force which it is provided anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have. Section 6.13. Preferential Collection of Claims Against Company or Guarantor. If and when the Trustee shall be or become a creditor of the Company or the Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or the Guarantor (or any such other obligor). Section 6.14. Appointment of Authenticating Agent. (a) The Trustee may 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 original issue (in accordance with procedures acceptable to the Trustee) and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.7, and 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 certificate of authentication executed on behalf of the -55- Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, or of 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 said supervising or examining authority, then for the purposes of this Section, 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, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. (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 all or substantially all of the corporate trust business of an Authenticating Agent, shall be the successor an Authenticating Agent hereunder, 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 to 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 to 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 appoint a successor Authenticating Agent eligible under the provisions of this Section, which shall be acceptable to the Company, and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. 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. (d) The Company and the Guarantor jointly and severally agree to pay to each Authenticating Agent 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 addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: -56- This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. Dated: THE CHASE MANHATTAN BANK, As Trustee By......................, As Authenticating Agent By....................... Authorized Officer ARTICLE VII Holder's Lists and Reports by Trustee and Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee (a) 15 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record 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; in each case to the extent such information is in the possession or control of the Company and has not otherwise been received by the Trustee in its capacity as Securities Registrar. -57- 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 Securities 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) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided in the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee or any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act. Section 7.3. Reports by Trustee. (a) If required by Section 3.13(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each September 15 following the date of this Indenture, deliver to the Holders a brief report, dated as of such September 15, which complies with the provisions of Section 3.13(a) of the Trust Indenture Act. (b) The Trustee shall transmit to Holders such other reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange or system upon which any Securities are listed or traded, with the Commission and with the Company. The Company shall notify the Trustee when any Securities are listed or traded on any securities exchange or system. Section 7.4. Reports by Company. (a) The Company shall furnish to the Holders and to prospective purchasers of Securities that are not registered under the Securities Act, upon their request, the information required to be furnished pursuant to Rule 144A(d)(4) under the Securities Act. -58- (b) The Company and the Guarantor, if applicable, shall file with the Trustee and with the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture; provided, that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless: (a) if the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of the Company substantially as an entirety shall be a corporation validly 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, any premium and interest on all the Securities of every series and the performance or observance of every covenant of this Indenture and the Securities on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (c) 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, any such supplemental indenture comply -59- with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with; and the Trustee may rely upon such Officers' Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Section. Section 8.2. Successor Substituted. (a) Upon any consolidation of the Company with, or merger of the Company into, any other Person, or any conveyance, transfer or lease by the Company of its properties and assets substantially as an entirety to any Person in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or 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 Company shall be discharged from all obligations and covenants under this Indenture and the Securities. (b) Such successor Person may cause to be executed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication pursuant to such provisions and any Securities that such successor Person thereafter shall cause to be executed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture. (c) In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form may be made in the Securities thereafter to be issued as may be appropriate. Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms. The Guarantor shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge into the Guarantor or convey, transfer or lease its properties and assets substantially as an entirety to the Guarantor, unless: -60- (a) if the Guarantor shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Guarantor is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of the Guarantor substantially as an entirety shall be a corporation validly existing under the laws of the United States of America, any State thereof, the District of Columbia or Bermuda 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 Guarantee with respect to each Guaranteed Security and the performance or observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (c) the Guarantor has delivered to the Trustee a Guarantor's 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, any such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with; and the Trustee may rely upon such Guarantor's Officers' Certificate and such Opinion of Counsel as conclusive evidence that such transaction complies with this Section. Section 8.4 Successor Substituted. (a) Upon any consolidation of the Guarantor with, or merger of the Guarantor into, any other Person, or any conveyance, transfer or lease by the Guarantor of its properties and assets substantially as an entirety to any Person in accordance with Section 8.3, the successor Person formed by such consolidation or into which the Guarantor is merged or 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 Guarantor under this Indenture with the same effect as if such successor Person had been named as the Guarantor herein, and thereafter, except in the case of a lease, the Guarantor shall be discharged from all obligations and covenants under this Indenture, the Guarantees and the Securities. (b) Such successor Person may cause to be executed, and may issue either in its own name or in the name of the Guarantor, any or all of the Guarantees issuable hereunder that theretofore shall not have been signed by the Guarantor and -61- delivered to the Trustee; and, upon the order of such successor Person instead of the Guarantor and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall deliver any Guarantees that previously shall have been signed and delivered by the officers of the Guarantor to the Trustee pursuant to such provisions and any Guarantees that such successor Person thereafter shall cause to be executed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore or thereafter issued in accordance with the terms of this Indenture. (c) In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form may be made in the Securities and Guarantees thereafter to be issued as may be appropriate. 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, the Guarantor (if the Securities established or affected by such supplemental indenture are Guaranteed Securities), when authorized by a Guarantor Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (a) to establish the form or terms of Securities of any series as permitted by Sections 2.1 or 3.1 or to establish the form of a Guarantee with respect to the Securities of any series as permitted by Section 2.5; or (b) to evidence the succession of another Person to the Company or the Guarantor, if applicable, and the assumption by any such successor of the covenants of the Company or the Guarantor, if applicable, herein and in the Securities or the Guarantee; or (c) to add to the covenants of the Company or the Guarantor 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 the Guarantor; or -62- (d) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or (e) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided, that any such addition, change or elimination (i) shall become effective only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision or (ii) shall not apply to any Outstanding Securities; or (f) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the purposes of securing the Securities; or (g) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or (h) to cure any ambiguity, to correct or supplement any provision herein that 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, that such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or (i) to comply with the requirements of the Commission in order to effect or maintain qualification of this Indenture under the Trust Indenture Act. Section 9.2 Supplemental Indentures With Consent of Holders. (a) With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of such Holders delivered to the Company, the Guarantor (if such affected Securities are Guaranteed Securities) and the Trustee, the Company (by a Board Resolution), the Guarantor (by a Guarantor Board Resolution) and the Trustee 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 modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, that no such -63- supplemental indenture shall, without the consent of the Holder of each Outstanding Security of each series affected thereby, (i) change the Stated Maturity of the principal of, any premium or interest on or Additional Amounts with respect to, any Security, or reduce the principal amount of any Security or the rate of interest thereon or any premium payable upon the redemption thereof or otherwise, or reduce the principal amount of a Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, modify the calculation of the rate of interest on any Security or change the date on which any Senior Note may be redeemed, or change the Place of Payment where, or the coin or currency in which, any Guarantee or any Security or any premium or interest thereon or any Additional Amounts with respect thereto are payable, or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof or, in the case of redemption on or with respect to any Securities, on or after the Redemption Date, or (ii) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series, the consent of whose Holders is required to enter into any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with any provisions of this Indenture or any default hereunder and their consequences provided for in this Indenture, or (iii)modify any of the provisions of this Section, Section 5.13 or Section 10.11, 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 Out standing Security affected thereby; provided, 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 and Section 10.11, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.1(g), or (iv) if the Securities are Guaranteed Securities, reduce any amount payable under, delay or defer the required time of payment under, or impair the right to institute suit to enforce any payment under the Guarantee, or (v) modify the terms of the Guarantee contained in Article XIV in any manner adverse to the Holders. (b) A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that 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 -64- 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. 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 shall be fully protected in relying upon an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties, responsibilities or immunities 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. Section 9.6. Reference in Securities to Supplemental Indentures. Securities of any series 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 Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding -65- Securities of such series, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. ARTICLE X Covenants Section 10.1. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of such Securities and this Indenture. Section 10.2. Maintenance of Office or Agency. (a) The Company and the Guarantor will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series and the related Guarantee 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 or the Guarantor in respect of the Securities of that series, the related Guarantee and this Indenture may be served. The Company and the Guarantor initially appoint the Trustee, acting through its Corporate Trust office, as its agent for such purposes. The Company or the Guarantor will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company or the Guarantor shall fail to maintain such 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 and the Guarantor hereby appoint the Trustee as their agent to receive all such presentations, surrenders, notices and demands. (b) The Company or the Guarantor may also from time to time designate one or more other offices or agencies where the Securities of one or more series and the related Guarantee may be presented or surrendered for any or all of such purposes and may from time to time rescind such designations; provided, that no such designation or rescission shall in any manner relieve the Company and the Guarantor of their obligations to maintain an office or agency in each Place of Payment for Securities of any series and the related Guarantee for such purposes. The Company or the Guarantor will give prompt written notice to the Trustee of any -66- such designation or rescission and of any change in the location of any such office or agency. Section 10.3. Money for Security Payments to be Held in Trust. (a) If the Company shall at any time act as its own Paying Agent or if the Guarantor shall act as Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium 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 any premium 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 in writing of its action or failure so to act. If the Guarantor shall at any time act as its own Paying Agent with respect to the Guarantee, it will, on or before each date on which amounts payable under the Guarantee are due and payable, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay all amounts then due and payable under the Guarantee until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee in writing of its action or failure so to act. (b) Whenever the Company shall have one or more Paying Agents (other than the Guarantor) for any series of Securities, it will, prior to 10:00 a.m., New York City time, on each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. Whenever the Guarantor shall have one or more Paying Agents for the Guarantee of any Guaranteed Security, it will, prior to 10:00 a.m., New York City time, on each date that amounts are due under such Guarantee, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act and (unless such Paying Agent is the Trustee) the Guarantor will promptly notify the Trustee in writing of its action or failure to so act. (c) The Company will cause each Paying Agent for any series of Securities other than the Trustee or the Guarantor and the Guarantor will cause each Paying Agent for the Guarantee other than the Trustee 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 (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee -67- all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. (d) The Company or the Guarantor 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 or Guarantor Order, as the case may be, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company, the Guarantor 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, the Guarantor 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 or the Guarantor, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall (unless otherwise required by mandatory provision of the applicable escheat or abandoned or unclaimed property law) be paid on Company Request to the Company, (or, if deposited by the Guarantor, paid on Guarantor Request to the Guarantor) or (if then held by the Company or the Guarantor) shall (unless otherwise required by mandatory provision of the applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company and the Guarantor, if applicable, 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 or Guarantor as trustee thereof, shall thereupon cease; provided, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company or the Guarantor, if applicable, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or the Guarantor, if applicable. Section 10.4. Statement by Officers as to Compliance. The Company shall 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 (one of the signatories to which shall be the principal financial officer, principal executive officer or principal accounting officer of the Company) covering the preceding fiscal year, 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 of this Indenture (without regard to any grace period or -68- requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. Section 10.5 Statement by Guarantor's Officers as to Compliance. The Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Guarantor ending after the date hereof, a Guarantor's Officers' Certificate (one of the signatories to which shall be the principal financial officer, principal executive officer or principal accounting officer of the Guarantor) covering the preceding fiscal year, stating whether or not to the knowledge of the signers thereof the Guarantor is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any grace period or requirement of notice provided hereunder) and, if the Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. Section 10.6 Existence. Subject to Article VIII and Section 10.9, each of the Company and the Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and effect its and its Subsidiaries' existence, rights (charter and statutory) and franchises; provided, however, that neither the Company nor the Guarantor shall be required to preserve any such right or franchise if the Company's Board of Directors or the Guarantor's Board of Directors, as the case may be, shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or the Guarantor, as the case may be, and that the loss thereof is not disadvantageous in any material respect to the Holders. Section 10.7 Payment of Taxes and Other Claims. Each of the Company and the Guarantor shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Company or the Guarantor, as the case may be, or any of their respective Subsidiaries or upon the income, profits or property thereof, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or the Guarantor, as the case may be, or any of their respective Subsidiaries; provided, however, that neither the Company nor the Guarantor shall be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which adequate -69- reserves have been established to the extent required by generally accepted accounting principles. Section 10.8 Limitation on Liens on Stock of Significant Subsidiaries. Neither the Company (so long as any Securities are Outstanding) nor the Guarantor (so long as any Guaranteed Securities are outstanding) shall, and neither the Company (so long as any Securities are Outstanding) nor the Guarantor (so long as any Guaranteed Securities are outstanding) shall permit any of its Significant Subsidiaries at any time, directly or indirectly, to, create, assume, incur, or otherwise permit to exist any Debt secured by any Lien upon any shares of capital stock of any such Significant Subsidiary (whether such shares of stock are now owned or hereafter acquired) without effectively providing concurrently that the Securities or the Guarantee, as the case may be, (and, if the Company or the Guarantor, as the case may be, so elects, any other Debt of the Company or the Guarantor, as the case may be, that ranks equally with the Securities or the Guarantee, as the case may be,) shall be secured equally and ratably with or prior to such Debt for at least the time period such other Debt is so secured; provided, that this Section shall not apply, with respect to the Securities of any series, to any Debt existing on the date of the first issuance of Securities of such series that is so secured and any renewals, extensions or refundings of such Debt. Section 10.9 Limitation on Disposition of Stock of Significant Subsidiaries. Subject to the provisions of Article VIII, neither the Company (so long as any Securities are Outstanding) nor the Guarantor (so long as any Guaranteed Securities are outstanding) will sell, transfer or otherwise dispose of any shares of capital stock of any of its Significant Subsidiaries, and neither the Company (so long as any Securities are Outstanding) nor the Guarantor (so long as any Guaranteed Securities are outstanding) will permit any such Significant Subsidiary to sell, transfer or otherwise dispose of any shares of capital stock of any other of its Significant Subsidiaries. Notwithstanding the foregoing, (i) the Company or the Guarantor may merge or consolidate any of its Significant Subsidiaries into or with another direct or indirect Subsidiary of the Company or the Guarantor and (ii) the Company or the Guarantor may, subject to the provisions of Article VIII, sell, transfer or otherwise dispose of the entire capital stock of any of its Significant Subsidiaries at one time for consideration consisting of cash or other property which is at least equal to the fair market value thereof as determined by the Board of Directors pursuant to a Board Resolution or by the Guarantor's Board of Directors pursuant to a Guarantor Board Resolution, in each case adopted in good faith. -70- Section 10.10 Original Issue Discount. For each year during which any Discount Securities are Outstanding, the Company shall furnish to each Paying Agent in a timely fashion such information as may be reasonably requested by each Paying Agent in order that each Paying Agent may prepare the information which it is required to report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such information shall include the amount of original issue discount includible in income for each $25 of principal amount at Stated Maturity of outstanding Securities during such year. Section 10.11 Waiver of Certain Covenants. Except as otherwise specified as contemplated by Section 3.1 for Securities of such series, the Company or the Guarantor, if applicable, may, with respect to the Securities of any series, omit in any particular instance to comply with any covenant in Section 10.8 or 10.9 or provided pursuant to Section 3.1 or Section 9.1(a) or (c) for the benefit of the Holders of such series if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant, but no such waiver shall extend to or affect such covenant, except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company or the Guarantor, if applicable, in respect of any such covenant shall remain in full force and effect. ARTICLE XI Redemption of Securities Section 11.1 Applicability of Article. Securities of any series that 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 such Securities) 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 or in another manner specified as contemplated by Section 3.1 for such Securities. In case of any redemption at the election of the Company, the -71- Company shall, at least 60 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. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company that is subject to a condition specified 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 or condition. Section 11.3 Selection of Securities to be Redeemed. (a) If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided, that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. (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. 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 Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed. (c) The provisions of paragraphs (a) and (b) of this Section shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. -72- Section 11.4 Notice of Redemption. (a) Notice of redemption shall be given not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. (b) With respect to Securities of each series to be redeemed, each notice of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price, as calculated by the Company, together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the day provided by the terms of such Securities (and if an estimate is provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated); (iii) if less than all Outstanding Securities of such series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed; (iv) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that interest thereon shall cease to accrue on and after said date; (v) the place or places where such Securities are to be surrendered for payment of the Redemption Price; (vi) that the redemption is for a sinking fund, if such is the case; and (vii) such other provisions as may be required in respect of the terms of such Securities. (c) Unless otherwise specified with respect to any Securities in accordance with Section 3.1, with respect to any redemption of Securities at the election of the Company, unless, upon the giving of notice of such redemption, Defeasance shall have been effected with respect to such Securities pursuant to Section 13.2, such notice may state that such redemption shall be conditional upon the receipt by the Trustee or the Paying Agent for such Securities, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of and any premium and interest on such Securities and that if such money shall not have been so received such notice shall be of no force or effect and the Company shall not be required to redeem such Securities. In the event such notice of redemption contains -73- such a condition and such money is not so received, the redemption shall not be made and within a reasonable time thereafter notice shall be given, in the same manner in which the notice of redemption was given, that such money was not so received and such redemption was not required to be made, and the Trustee or Paying Agent for the Securities otherwise to have been redeemed shall promptly return to the Holders thereof any of such Securities that had been surrendered for payment upon such redemption. (d) 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, subject to paragraph (c) of this Section, and shall be irrevocable. The notice if mailed in the manner provided above shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security. Section 11.5 Deposit of Redemption Price. Prior to 10:00 a.m., New York City time, on any Redemption Date, the Company or the Guarantor, if applicable, shall deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent with respect to such Securities or if the Guarantor is acting as Paying Agent with respect to such Securities or if the Guarantor is acting as its own Paying Agent with respect to the related Guarantee, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all the Securities (or portions thereof) that are to be redeemed on that date. Section 11.6 Payment of Securities Called for Redemption. (a) Except as provided in Section 11.4(c), after notice of redemption has been given, the Securities to be redeemed shall become due and payable on the Redemption Date at the place or places stated in such notice at the Redemption Price, together with accrued interest to the Redemption Date. Upon surrender of such Securities at a Place of Payment specified in such notice, such Securities shall be paid and redeemed by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, that, unless otherwise specified as contemplated by Section 3.1, installments of interest whose Stated Maturity is on or prior to the Redemption Date will 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 3.8. -74- (b) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal of and any premium on such Security shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. Section 11.7 Securities Redeemed in Part. Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented and having the same Original Issue Date, Stated Maturity and terms, with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. ARTICLE XII Sinking Funds Section 12.1 Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.1 for such Securities. The minimum amount of any sinking fund payment provided for by the terms of any Securities of any series is herein referred to as a "mandatory sinking fund payment", and any sinking fund payment in excess of such minimum amount that is permitted to be made by the terms of such Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of any 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 such Securities. Section 12.2 Satisfaction of Sinking Fund Payments with Securities. In lieu of making all or any part of a mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option, at any time no more than 16 months and no less than 60 days prior to the date on which such sinking fund payment is due, deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired by the Company, except Securities of such series that have been redeemed through the application of mandatory or -75- optional sinking fund payments pursuant to the terms of the Securities of such series, accompanied by a Company Order instructing the Trustee to credit such obligations and stating that the Securities of such series were originally issued by the Company by way of bona fide sale or other negotiation for value; provided, that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price for such Securities, as specified in the Securities so to be redeemed, 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. (a) Not less than 60 days prior 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 such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash in the currency in which the Securities of such series are payable (except as provided pursuant to Section 3.1) and the portion thereof, if any, that is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and stating the basis for such credit and that such Securities have not been previously so credited, and will also deliver to the Trustee any Securities to be so delivered. Such Officers' Certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the succeeding sinking fund payment date. In the case of the failure of the Company to deliver such Officers' Certificate (or, as required by this Indenture, the Securities specified in such Officers' Certificate) by the due date therefor, the sinking fund payment due on the succeeding sinking fund payment date for such series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the Securities of such series subject to a mandatory sinking fund payment without the right to deliver or credit securities as provided in Section 12.2 and without the right to make the optional sinking fund payment with respect to such series at such time. (b) Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made with respect to the Securities of any particular series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent or by the Guarantor if the Guarantor is acting as Paying Agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date immediately following the date of such payment) to the redemption of Securities of such series at the Redemption Price specified in such Securities with respect to the sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee (or, if the Company is acting as its own Paying Agent or the Guarantor is acting as Paying Agent, segregated and held -76- in trust by the Company or the Guarantor as provided in Section 10.3) for such series and together with such payment (or such amount so segregated) shall be applied in accordance with the provisions of this Section 12.3. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee (or if the Company is acting as its own Paying Agent or the Guarantor is acting as Paying Agent, segregated and held in trust as provided in Section 10.3) on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities of such series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent or by the Guarantor if the Guarantor is acting as Paying Agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity. 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 Section 11.6. On or before each sinking fund payment date, the Company or the Guarantor, if applicable, shall pay to the Trustee (or, if the Company is acting as its own Paying Agent or the Guarantor is acting as Paying Agent, segregate and hold in trust as provided in Section 10.3) in cash a sum in the currency in which Securities of such series are payable (except as provided pursuant to Section 3.1) equal to the principal and any premium and interest accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 12.3 and any Additional Amounts with respect thereto. (c) Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to the Securities of such series, except that if the notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee, or the Company, (if the Company is then acting as its own Paying Agent) or the Guarantor (if the Guarantor is acting as Paying Agent) shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company or the Guarantor, as the case may be) for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of the Securities of such series; provided, that in case such default or Event of Default shall have been cured or waived herein, such moneys shall thereafter be applied on the next sinking fund payment date for the Securities of such series on which such moneys may be applied pursuant to the provisions of this Section 12.3. -77- ARTICLE XIII Defeasance and Covenant Defeasance Section 13.1 Company's Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option at any time, to have Section 13.2 or Section 13.3 applied to any Securities or any series of Securities designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2 or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon compliance with the conditions set forth below in this Article. Section 13.2 Defeasance and Discharge. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company and the Guarantor, if applicable, shall be deemed to have been discharged from its obligations with respect to such Securities and under the Guarantee in respect thereof as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company and the Guarantor, if applicable, shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and under the Guarantee in respect thereof and to have satisfied all its other obligations under such Securities, such Guarantee and this Indenture insofar as such Securities and the Guarantee in respect thereof are concerned (and the Trustee, at the expense of the Company or the Guarantor, if applicable, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (b) the Company's and, if applicable, the Guarantor's, obligations with respect to such Securities under Sections 3.6, 3.7, 10.2 and 10.3, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) the provisions of this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.3 applied to such Securities. -78- Section 13.3 Covenant Defeasance. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (a) the Company and the Guarantor, if applicable, shall be released from its obligations under Sections 8.1, 8.3, 10.8 and 10.9 and any covenants provided pursuant to Section 3.1(o), 9.1(a), 9.1(c) or 9.1(f) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Sections 5.1(d) (with respect to any of Sections 8.1, 8.3, 10.8 and 10.9 and any covenants provided pursuant to Sections 3.1(o), 9.1(a), 9.1(c) or 9.1(f)), Section 5.1(e), (f) and (j) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company and the Guarantor, if applicable, may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, 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. Notwithstanding anything herein to the contrary, no Covenant Defeasance shall release any successor Person referred to in Article VIII from its obligations to assume the obligations of the Company and the Guarantor, as applicable, under Section 6.7 as a condition to the consummation of any transaction contemplated by Section 8.1 or 8.3, as applicable. Section 13.4 Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of Securities, as the case may be: (a) The Company or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9 and agrees to comply with the provisions of this Article 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, (i) money in an amount or (ii) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount or (iii) a combination thereof, in each case 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 any such other qualifying trustee) to pay and discharge, the -79- principal of and any premium and interest on such Securities on the respective Stated Maturities or Redemption Dates in accordance with the terms of this Indenture and such Securities. (b) In the event of an election to have Section 13.2 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize income, gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. (c) In the event of an election to have Section 13.3 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. (d) The Company shall have delivered to the Trustee an Officers' Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. (e) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.1(g) and (h), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act). -80- (g) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder. (h) If the money and/or Government Obligations deposited in trust pursuant to this Section are sufficient to pay and discharge such Securities on a Redemption Date, then at or prior to the time of such deposit, either notice of such redemption shall have been given in accordance with Section 11.4 or the Company shall have irrevocably instructed the Trustee to give such notice of redemption and arrangements satisfactory to the Trustee for the giving of such notice by the Trustee in the name, and at the expense, of the Company shall have been made. (i) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions. (a) Subject to the provisions of the last paragraph of Section 10.3, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.6, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 13.4 in respect of any Securities 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 such Paying Agent (including the Company acting as its own Paying Agent or the Guarantor acting as 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 principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law. (b) The Company and the Guarantor, jointly and severally, agree to pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the 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 Outstanding Securities. (c) Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon a Company Request (or, -81- if deposited by the Guarantor, to the Guarantor from time to time upon a Guarantor Request) any money or Government Obligations held by it as provided in Section 13.4 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities. Section 13.6. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities and the Guarantee from which the Company and the Guarantor, if applicable, have been discharged or released pursuant to Section 13.2 or 13.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.5 with respect to such Securities in accordance with this Article; provided, that if the Company or the Guarantor makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company or the Guarantor, as the case may be, shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust. Section 13.7. Qualifying Trustee. Any trustee appointed pursuant to Section 13.4 for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form reasonably acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related Defeasance or Covenant Defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee. -82- ARTICLE XIV Guarantee And Indemnity Section 14.1. Applicability of Article. Securities of any series which are to be Guaranteed Securities shall be subject to the provisions of this Article XIV. Section 14.2. The Guarantee. The Guarantor hereby agrees to unconditionally and irrevocably guarantee (the form of such guarantee to be established as provided in Section 2.5), subject to the terms and conditions of the Guarantee, to each Holder of a Security authenticated and delivered by the Trustee (a) the due and punctual payment of the principal of and any premium and interest on and all other amounts on or in respect of such Security and the due and punctual payment of the sinking fund payments (if any) provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, redemption, repayment or otherwise, in accordance with the terms of such Security and of this Indenture and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities. In case of the failure of the Company punctually to pay any such principal, premium, interest or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at Stated Maturity, upon acceleration, redemption, repayment or otherwise, and as if such payment were made by the Company. In case of the failure of the Company to perform any other obligation of the Company to the Holders of Securities of any series, for whatever reason, the Guarantor shall be obligated to perform or cause the performance of the same immediately. An Event of Default under this Indenture or the Securities of any series shall constitute an event of default under this Guarantee, and shall entitle the Holders of Securities of such series to accelerate the obligations of the Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. The Trustee is entitled to enforce the Guarantee in accordance with the provisions of Article V. Section 14.3. Net Payments. All payments under the Guarantee shall be made by the Guarantor without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which the Guarantor is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, -83- duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If any withholding or deduction at source is required, the Guarantor shall, subject to the limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment under the Guarantee made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in the Guarantee and this Indenture to be then due and payable (the "Additional Amounts"); provided, that -------- the Guarantor shall not be required to make payment of such Additional Amounts for or on account of: (1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder or the beneficial owner of such Security: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or therein or otherwise had some connection with the relevant taxing jurisdiction or any political subdivision thereof or therein other than by reason of the mere ownership of, or receipt of payment under, such Security or the Guarantee; (B) presented the related Security for payment in the relevant taxing jurisdiction or any political subdivision thereof, unless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than thirty (30) days after the date on which the payment in respect of such Security first became due and payable, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts if it had presented such Security for payment on any day within such period of thirty (30) days; (2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or (3) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of such Security to comply, within 90 days, with any reasonable request by the Guarantor addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or -84- identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; nor shall Additional Amounts be paid with respect to any payment under the Guarantee to any Holder where the beneficial owner of the related Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or partner of such partnership who would not have been entitled to such Additional Amounts had it been the Holder of the Security. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series or the related Guarantee, at least 10 days prior to the first Interest Payment Date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below mentioned Guarantor's Officer's Certificate, the Guarantor shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, a Guarantor's Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section 14.3. If any such withholding shall be required, then such Guarantor's Officer's Certificate shall specify by jurisdiction in which the Holders of Securities are resident for tax -85- purposes the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Guarantor agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by this Section 14.3. The Guarantor covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Guarantor's Officer's Certificate furnished pursuant to this Section 14.3. Section 14.4 Guarantee Unconditional, etc. The Guarantor hereby agrees that its obligations hereunder shall be as principal, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security, this Indenture or the obligations of the Company or any other guarantor to the Holders and the Trustee hereunder, any failure to enforce the provisions of any Security or this Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Company or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, any premium and interest on and sinking fund payments required with respect to, the Securities and the complete performance of all other obligations contained in the Securities, this Indenture and the Guarantee. This Guarantee is a guarantee of payment and not of collection. The Guarantor further agrees, to the fullest extent that it lawfully may do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 5.2 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or prohibition extant under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction preventing such acceleration in respect of the obligations guaranteed hereby (in accordance with procedures acceptable to the Trustee), and (2) in the event of any acceleration of such obligations as provided in Article V, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Securities or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by the Guarantor of its liabilities and obligations under this Guarantee or under this Indenture. -86- This Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities of the relevant Series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. Section 14.5. Execution of Guarantee. To evidence its guarantee specified in this Article XIV to the Holders of any Security of any series, the Guarantor hereby agrees to execute the Guarantee, in substantially the form set forth in Section 14.6 (except as otherwise permitted by Section 2.5) to be endorsed on each Security of such series authenticated and delivered by the Trustee. Such Guarantee shall be executed on behalf of the Guarantor by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, 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. A Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Guarantor shall bind the Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Guarantee or did not hold such offices at the date of such Guarantee. If the form of the Guarantee of the series has been established in or pursuant to one or more Guarantor Board Resolutions as permitted by Section 2.5, in authenticating the Securities on which such Guarantee is endorsed, and accepting the additional responsibilities under this Indenture in relation to such Guarantee, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating, (a) if the form of such Guarantee has been established by or pursuant to Guarantor Board Resolution as permitted by Section 2.5, that such form has been established in conformity with the provisions of this Indenture; (b) that the Guarantee, when the Securities on which the Guarantee is endorsed have been authenticated and delivered by the Trustee -87- and the Guarantee has been issued by the Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and (c) that all laws and requirements in respect of the execution and delivery by the Guarantor of such Guarantee have been complied with. If such form has been so established for such Guarantee, the Trustee shall not be required to authenticate the Securities on which such Guarantee is endorsed if the issue of such Guarantee pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities, the Guarantee and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. A Guarantee shall not be valid or become obligatory for any purpose with respect to a Security of any series until there appears on such Security a certificate of authentication substantially in the form provided for herein, executed by the Trustee by manual signature of an authorized officer, and such certificate upon any such Security shall be conclusive evidence, and the only evidence, that such Guarantee has been duly delivered hereunder. Section 14.6. Form of Guarantee. FOR VALUE RECEIVED, MUTUAL RISK MANAGEMENT LTD., a Bermuda corporation (the "Guarantor," which term includes any successor guarantor under the Indenture referred to in the Security upon which this Guarantee is endorsed (the "Indenture")), hereby guarantees to the holder of the Security upon which this Guarantee is endorsed the due and punctual payment of the principal of, any premium and interest on such Security and the due and punctual payment of the sinking fund payments (if any) provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, redemption, repayment or otherwise and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture and such Security. The Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to said Security or the indebtedness evidenced thereby and all demands whatsoever and covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in this Guarantee. -88- This Guarantee constitutes a guarantee of payment and not of collection and is unsecured and ranks equally and ratably with all other unsecured and unsubordinated obligations of the Guarantor. The Guarantor hereby certifies and warrants that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this Guarantee, and to constitute the same the legal, valid and binding obligations of the Guarantor enforceable in accordance with its terms have been done and performed and have happened in compliance with all applicable laws. This Guarantee is dated the date of the Security upon which it is endorsed. All capitalized terms used in this Guarantee but not defined herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture. The terms of this Guarantee include those stated in the Indenture. This Guarantee is subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed. MUTUAL RISK MANAGEMENT LTD. By_______________________ Name: Title: Section 14.7. Subrogation. The Guarantor shall be subrogated to all rights of the Holder of any Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of a Guarantee; provided, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such -89- right of subrogation until the principal of and any premium and interest on and sinking fund payments required with respect to, all Securities of the series of which such Security is a part shall have been paid in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence and the Securities of the relevant series shall not have been paid in full, such amount shall have been deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Securities of such series, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon such Securities, whether matured or unmatured, in accordance with the terms of this Indenture. Section 14.8. Indemnity. As a separate and alternative stipulation, the Guarantor unconditionally and irrevocably agrees that any sum expressed to be payable by the Company under this Indenture or the Securities but which is for any reason (whether or not now known or becoming known to the Company, the Guarantor, the Trustee or any Holder of any Security) not recoverable from the Guarantor on the basis of a guarantee will nevertheless be recoverable from it as if it were the sole principal debtor and will be paid by it to the Trustee on demand. This indemnity constitutes a separate and independent obligation from the other obligations in this Indenture, gives rise to a separate and independent cause of action and will apply irrespective of any indulgence granted by the Trustee or any Holder of any Security. 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. -90- In Witness Whereof, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written. MUTUAL GROUP LTD., as Issuer By______________________________ Name: Title: Attest: __________________ MUTUAL RISK MANAGEMENT LTD., as Guarantor By______________________________ Name: Title: Attest: __________________ THE CHASE MANHATTAN BANK, as Trustee By______________________________ Name: Title: Attest: _________________ -91- State of New York ) ) ss.: County of New York ) On the .... day of ..........., ...., before me personally came ..........................., to me known, who, being by me duly sworn, did depose and say that he is .................... of Mutual Group Ltd., one of the corporations described in and which executed the foregoing instrument, and that he signed his name thereto by like authority. ............................ State of New York ) ) ss.: County of New York ) On the .... day of ..........., ...., before me personally came ..........................., to me known, who, being by me duly sworn, did depose and say that he is .................... of Mutual Risk Management Ltd., one of the corporations described in and which executed the foregoing instrument, and that he signed his name thereto by like authority. ............................ State of New York ) ) ss.: County of New York ) On the .... day of ..........., ...., before me personally came ..........................., to me known, who, being by me duly sworn, did depose and say that he is .................... of The Chase Manhattan Bank, one of the corporations described in and which executed the foregoing instrument, that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. ............................. -92- EX-4.3 5 FORM OF INDENTURE FOR JUNIOR SUB NOTES MRM Exhibit 4.3 ================================================================================ MUTUAL RISK MANAGEMENT LTD., Issuer to THE CHASE MANHATTAN BANK, as Trustee __________________ JUNIOR SUBORDINATED INDENTURE Dated as of ________ __, 2000 __________________ ================================================================================ TABLE OF CONTENTS
Page ARTICLE I Definitions and Other Provisions Of General Application Section 1.1. Definitions.................................................. 1 Section 1.2. Compliance Certificates and Opinions......................... 11 Section 1.3. Forms of Documents Delivered to Trustee...................... 12 Section 1.4. Acts of Holders; Record Dates................................ 13 Section 1.5. Notices, Etc. to Trustee and Company......................... 15 Section 1.6. Notice to Holders; Waiver.................................... 16 Section 1.7. Conflict with Trust Indenture Act............................ 16 Section 1.8. Effect of Headings and Table of Contents..................... 16 Section 1.9. Successors and Assigns....................................... 16 Section 1.10. Separability Clause.......................................... 17 Section 1.11. Benefits of Indenture........................................ 17 Section 1.12. Governing Law................................................ 17 Section 1.13. Non-Business Days............................................ 17 Section 1.14. Indenture and Securities Solely Corporate Obligations........ 17 Section 1.15. Submission to Jurisdiction................................... 18 ARTICLE II Security Forms Section 2.1. Forms Generally.............................................. 18 Section 2.2. Form of Face of Security..................................... 18 Section 2.3. Form of Reverse of Security.................................. 22 Section 2.4. Additional Provisions Required in Global Security............ 25 Section 2.5. Form of Trustee's Certificate of Authentication.............. 26 ARTICLE III The Securities Section 3.1. Title and Terms.............................................. 26 Section 3.2. Denominations................................................ 29 Section 3.3. Execution, Authentication, Delivery and Dating............... 30
-i- Section 3.4. Temporary Securities............................................................... 31 Section 3.5. Global Securities.................................................................. 32 Section 3.6. Registration, Transfer and Exchange................................................ 33 Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities................................... 34 Section 3.8. Payment of Interest and Additional Interest; Interest Rights Preserved............. 35 Section 3.9. Persons Deemed Owners.............................................................. 37 Section 3.10. Cancellation....................................................................... 37 Section 3.11. Computation of Interest............................................................ 38 Section 3.12. Deferrals of Interest Payment Dates................................................ 38 Section 3.13. Right of Set-Off................................................................... 39 Section 3.14. Agreed Tax Treatment............................................................... 39 Section 3.15. Shortening and Extending Stated Maturity........................................... 40 Section 3.16. CUSIP Numbers...................................................................... 40 ARTICLE IV Satisfaction and Discharge Section 4.1. Satisfaction and Discharge of Indenture............................................ 40 Section 4.2. Application of Trust Money......................................................... 42 ARTICLE V Remedies Section 5.1. Events of Default.................................................................. 42 Section 5.2. Acceleration of Maturity; Rescission and Annulment................................. 44 Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.................... 46 Section 5.4. Trustee May File Proofs of Claim................................................... 47 Section 5.5. Trustee May Enforce Claims Without Possession of Securities........................ 47 Section 5.6. Application of Money Collected..................................................... 47 Section 5.7. Limitation on Suits................................................................ 48 Section 5.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Tax Sums; Direct Action by Holders of Preferred Securities...................................................................... 49 Section 5.9. Restoration of Rights and Remedies................................................. 49 Section 5.10. Rights and Remedies Cumulative..................................................... 50 Section 5.11. Delay or Omission Not Waiver....................................................... 50 Section 5.12. Control by Holders................................................................. 50
-ii- Section 5.13. Waiver of Past Defaults............................................................ 51 Section 5.14. Undertaking for Costs.............................................................. 51 Section 5.15. Waiver of Usury, Stay or Extension Laws............................................ 52 ARTICLE VI The Trustee Section 6.1. Certain Duties and Responsibilities................................................ 52 Section 6.2. Notice of Defaults................................................................. 52 Section 6.3. Certain Rights of Trustee.......................................................... 53 Section 6.4. Not Responsible for Recitals or Issuance of Securities............................. 54 Section 6.5. May Hold Securities................................................................ 54 Section 6.6. Money Held in Trust................................................................ 55 Section 6.7. Compensation and Reimbursement..................................................... 55 Section 6.8. Conflicting Interests.............................................................. 56 Section 6.9. Corporate Trustee Required; Eligibility............................................ 56 Section 6.10. Resignation and Removal; Appointment of Successor.................................. 56 Section 6.11. Acceptance of Appointment by Successor............................................. 58 Section 6.12. Merger, Conversion, Consolidation or Succession to Business........................ 59 Section 6.13. Preferential Collection of Claims Against Company.................................. 59 Section 6.14. Appointment of Authenticating Agent................................................ 59 ARTICLE VII Holder's Lists and Reports by Trustee and Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.......................... 61 Section 7.2. Preservation of Information; Communications to Holders............................. 62 Section 7.3. Reports by Trustee................................................................. 62 Section 7.4. Reports by Company................................................................. 62
-iii- ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms................................ 63 Section 8.2. Successor Company Substituted....................................................... 64 ARTICLE IX Supplemental Indentures Section 9.1. Supplemental Indentures Without Consent of Holders.................................. 64 Section 9.2. Supplemental Indentures With Consent of Holders..................................... 65 Section 9.3. Execution of Supplemental Indentures................................................ 67 Section 9.4. Effect of Supplemental Indentures................................................... 67 Section 9.5. Conformity with Trust Indenture Act................................................. 67 Section 9.6. Reference in Securities to Supplemental Indentures.................................. 68 ARTICLE X Covenants Section 10.1. Payment of Principal, Premium and Interest.......................................... 68 Section 10.2. Maintenance of Office or Agency..................................................... 68 Section 10.3. Money for Security Payments to be Held in Trust..................................... 69 Section 10.4. Statement by Officers as to Compliance.............................................. 70 Section 10.5. Additional Amounts.................................................................. 70 Section 10.6. Original Issue Discount............................................................. 72 Section 10.7. Additional Tax Sums................................................................. 73 Section 10.8. Additional Covenants................................................................ 73 Section 10.9. Waiver of Certain Covenants......................................................... 74
-iv- ARTICLE XI Redemption Of Securities Section 11.1. Applicability of Article........................................................... 75 Section 11.2. Election to Redeem; Notice to Trustee.............................................. 75 Section 11.3. Selection of Securities to be Redeemed............................................. 75 Section 11.4. Notice of Redemption............................................................... 76 Section 11.5. Deposit of Redemption Price........................................................ 77 Section 11.6. Payment of Securities Called for Redemption........................................ 78 Section 11.7. Securities Redeemed in Part........................................................ 78 Section 11.8. Right of Redemption of Securities Initially Issued to a Trust...................... 78 ARTICLE XII Sinking Funds Section 12.1. Applicability of Article.......................................................... 79 Section 12.2. Satisfaction of Sinking Fund Payments with Securities............................. 79 Section 12.3. Redemption of Securities for Sinking Fund......................................... 80 ARTICLE XIII Defeasance and Covenant Defeasance Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance...................... 81 Section 13.2. Defeasance and Discharge.......................................................... 82 Section 13.3. Covenant Defeasance............................................................... 82 Section 13.4. Conditions to Defeasance or Covenant Defeasance................................... 83 Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions........................................................ 84 Section 13.6. Reinstatement..................................................................... 85 Section 13.7. Qualifying Trustee................................................................ 85
-v- ARTICLE XIV Subordination of Securities Section 14.1. Securities Subordinate to Senior Debt............................................. 86 Section 14.2. No Payment When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc........................................................... 86 Section 14.3. Payment Permitted If No Default................................................... 88 Section 14.4. Subrogation to Rights of Holders of Senior Debt................................... 88 Section 14.5. Provisions Solely to Define Relative Rights....................................... 88 Section 14.6. Trustee to Effectuate Subordination............................................... 89 Section 14.7. No Waiver of Subordination Provisions............................................. 89 Section 14.8. Notice to Trustee................................................................. 90 Section 14.9. Reliance on Judicial Order or Certificate of Liquidating Agent.................... 90 Section 14.10. Trustee Not Fiduciary for Holders of Senior Debt.................................. 91 Section 14.11. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights.......................................................................... 91 Section 14.12. Article Applicable to Paying Agents.............................................. 91
-vi- .............................................................. Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section (s) 310(a)(1) ........................................................ 6.9 (a)(2) ........................................................ 6.9 (a)(3) ........................................................ Not Applicable (a)(4) ........................................................ Not Applicable (b) ........................................................ 6.8 6.10 (s) 311(a) ........................................................ 6.13 (b) ........................................................ 6.13 (s) 312(a) ........................................................ 7.1 7.2 (b) ........................................................ 7.2 (c) ........................................................ 7.2 (s) 313(a) ........................................................ 7.3 (b) ........................................................ 7.3 (c) ........................................................ 7.3 (d) ........................................................ 7.3 (s) 314(a) ........................................................ 7.4 (a)(4) ........................................................ 1.2 10.4 10.5 (b) ........................................................ Not Applicable (c)(1) ........................................................ 1.2 (c)(2) ........................................................ 1.2 (c)(3) ........................................................ Not Applicable (d) ........................................................ Not Applicable (e) ........................................................ 1.2 (s) 315(a) ........................................................ 6.1 (b) ........................................................ 6.2 (c) ........................................................ 6.1 (d) ........................................................ 6.1 (e) ........................................................ 5.14 (s) 316(a) ........................................................ 5.12 (a)(1) (A) ........................................................ 5.2 5.12 (a)(1) (B) ........................................................ 5.13 (a)(2) ........................................................ Not Applicable (b) ........................................................ 5.8 (c) ........................................................ 1.4 (s) 317(a)(1) ........................................................ 5.3 (a)(2) ........................................................ 5.4 (b) ........................................................ 10.3 (s) 318(a) ........................................................ 10.7
- ------------------- -vii- NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. -viii- JUNIOR SUBORDINATED INDENTURE, dated as of ________ __, 2000, between MUTUAL RISK MANAGEMENT LTD., a Bermuda corporation having its principal office at 44 Church Street, Hamilton HM 12 Bermuda (the "Company"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as Trustee (the "Trustee"). Recitals Whereas, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its junior subordinated debt securities in series (hereinafter called the "Securities") of substantially the tenor hereinafter provided, including Securities issued to evidence loans made to the Company of the proceeds from the issuance from time to time by one or more business trusts (each a "Trust") of undivided preferred beneficial interests in the assets of such Trusts (the "Preferred Securities") and undivided common beneficial interests in the assets of such Trusts (the "Common Securities" and, collectively with the Preferred Securities, the "Trust Securities"), unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided; Whereas, all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done; and Whereas, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions. Now Therefore, This Indenture Witnesseth: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, 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 meanings assigned to them in this Article, and include the plural as well as the singular; (2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation"; (4) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (5) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; (6) whenever the context may require, any gender shall be deemed to include the others; (7) the words "hereby," "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 (8) the word "or" is always used inclusively (for example the phrase "A or B" means "A or B or both," not "either A or B but not both"). "Act" when used with respect to any Holder has the meaning specified in Section 1.4. "Additional Amounts" has the meaning specified in Section 10.5. "Additional Interest" means the interest, if any, that shall accrue on any interest on the Securities of any series the payment of which has not been made on the applicable Interest Payment Date in accordance with Section 3.12, and which shall accrue at the rate per annum specified or determined as specified in such Security. "Additional Tax Sums" has the meaning specified in Section 10.7. "Additional Taxes" means, in the case of Securities of a series initially issued to a Trust, taxes, duties or other governmental charges imposed on the Trust as a result of a Tax Event (which, for the sake of clarity, does not include amounts required to be deducted or withheld by the Trust from payments made by the Trust to or for the benefit of the Holder of, or any Person that acquires a beneficial interest in, the Securities). -2- "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; provided, however, that an Affiliate of the Company shall not be deemed to include any Trust to which Securities have been issued. 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. "Agent Member" means any member of, or participant in, the Depositary. "Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series. "Board of Directors" means the board of directors of the Company or any duly authorized committee of that 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 any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee, or, with respect to the Securities of a series initially issued to a Trust for so long as such Securities are held by such Trust, the "Corporate Trust Office" (as defined in the related Trust Agreement) of the Property Trustee under the related Trust Agreement, is closed for business. "Calculation Agent" with respect to Securities of any series that bear interest determined by reference to a Floating Rate Index, means the Person designated as Calculation Agent by the Company pursuant to Section 3.1 with respect to such series. "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 instrument 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. "Common Securities" has the meaning specified in the first recital of this Indenture. -3- "Common Shares" means the common shares, par value $0.01 per share, of the Company. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "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 at the date of this Indenture is located at 450 West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services. "Covenant Defeasance" has the meaning specified in Section 13.3. "Debt" means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent and without duplication, (i) every obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable); (v) every capital lease obligation of such Person; (vi) every obligation of such Person pursuant to derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any obligation of the type referred to in clauses (i) through (vii). "Defaulted Interest" has the meaning specified in Section 3.8. "Defeasance" has the meaning specified in Section 13.2. "Delaware Trustee" means, with respect to any Trust, the Person identified as the "Delaware Trustee" in the related Trust Agreement, solely in its capacity as Delaware Trustee of such Trust -4- under such Trust Agreement and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware trustee appointed as therein provided. "Depositary" means, with respect to Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, an organization registered as a clearing agency under the Exchange Act that is designated as Depositary by the Company pursuant to Section 3.1 with respect to such Securities. "Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2. "Distributions," with respect to the Trust Securities issued by a Trust, means amounts payable in respect of such Trust Securities as provided in the related Trust Agreement and referred to therein as "Distributions." "Dollar" or "$" means the currency of the United States of America that, as at the time of payment, is legal tender for the payment of public and private debts. "Event of Default," unless otherwise specified with respect to a series of Securities as contemplated by Section 3.1, has the meaning specified in Section 5.1. "Exchange Act" means the Securities Exchange Act of 1934 or any statute successor thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 1.4(g). "Extension Period" has the meaning specified in Section 3.12. "Floating Rate Index" means, with respect to Securities of any series that bear a floating interest rate, the index specified as the Floating Rate Index by the Company pursuant to Section 3.1 with respect to such series. "Global Security" means a Security that evidences all or part of the Securities of any series and that bears the legend set forth in Section 2.4 (or such legend as may be specified as contemplated by Section 3.1) issued to the Depositary or its nominee for such series, and registered in the name of such Depositary or its nominee. "Government Obligation" means (a) any security which is (i) a direct obligation of the United States of America or the government that issued the foreign currency in which such Securities are or may be payable for the payment of which the full faith and credit of the United -5- States of America or such foreign government is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such foreign government the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such foreign government, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any Government Obligation which is specified in clause (a) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt. "Guarantee Agreement" means, with respect to any Trust, the Guarantee Agreement executed by the Company for the benefit of the Holders of the Preferred Securities issued by such Trust as modified, amended or supplemented from time to time. "Holder" means a Person in whose name a Security is registered in the Securities Register. "Indenture" means this instrument as originally executed or as it may from time to time be amended or supplemented by one or more amendments or indentures supplemental hereto entered into pursuant to the applicable provisions hereof including, for all purposes of this instrument and any such amendment or supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such amendment or supplemental indenture, respectively. The term "Indenture" shall also include the terms of each particular series of Securities established as contemplated by Section 3.1. "Interest Payment Date" means, with respect to any Security, the Stated Maturity of an installment of interest on such Security. "Investment Company Act" means the Investment Company Act of 1940 or any successor statute thereto, in each case as amended from time to time. "Investment Company Event" means the receipt by a Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of the occurrence of a change in law or regulation or a written change (including any announced prospective change) in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, there is more than an insubstantial risk that such Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act, which -6- change or prospective change becomes effective or would become effective, as the case may be, on or after the date of the issuance of the Preferred Securities of such Trust. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind. "Maturity" means, when used with respect to any Security, the date on which the principal of such Security or any 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" means a written notice of the kind specified in Section 5.1(d) or 5.1(e). "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Company or any Affiliate of the Company. "Original Issue Date" means the date of issuance specified as such in each Security. "Outstanding" means, when used with respect to any Securities, 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 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; (iii) Securities as to which Defeasance has been effected pursuant to Section 13.2; (iv) Securities which have been paid pursuant to Section 3.7 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to the provisions of this Indenture unless proof satisfactory to the Trustee is presented that any such -7- Securities are held by a bona fide purchaser in whose hands such Securities are valid, binding and legal obligations of the Company; and (v) Securities converted or exchanged into other securities of the Company if the terms of such Securities provide for conversion or exchange pursuant to Section 3.1; provided, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or 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 that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's 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 such other obligor. Upon the written request of the Trustee, the Company shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of the Company or any other obligor on the Securities or any Affiliate of the Company or such obligor, and subject to the provisions of Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. Notwithstanding anything herein to the contrary, Securities of any series initially issued to a Trust that are owned by such Trust shall be deemed to be Outstanding notwithstanding the ownership by the Company or an Affiliate of any beneficial interest in such Trust. "Paying Agent" means any Person authorized by the Company to pay the principal of, any premium or interest on or other amounts with respect to any Securities on behalf of the Company. "Person" means any legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, government or any agency or political subdivision thereof or any other entity of whatever nature. "Place of Payment" means, with respect to the Securities of any series, the place or places where the principal of, any premium and interest on or other amounts with respect to the Securities of such series are payable as specified pursuant to Section 3.1. "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. For the purposes of -8- this definition, any Security authenticated and delivered under Section 3.7 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. "Preferred Securities" has the meaning specified in the first recital of this Indenture. "Proceeding" means, in respect of any Person, (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceedings relating to such Person, its creditors or its property, (ii) any proceeding for the liquidation, dissolution or other winding up of such Person, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (iii) any assignment by such Person for the benefit of creditors or (iv) any other marshaling of the assets of such Person. "Property Trustee" means, with respect to any Trust, the Person identified as the "Property Trustee" in the related Trust Agreement, solely in its capacity as Property Trustee of such Trust under such Trust Agreement and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as therein provided. "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 fixed by or pursuant to this Indenture. "Regular Record Date" for the interest payable on any Interest Payment Date with respect to the Securities of a series means, unless otherwise provided pursuant to Section 3.1 with respect to Securities of such series, the date that is fifteen days next preceding such Interest Payment Date (whether or not a Business Day). "Responsible Officer," when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any senior trust officer, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Rights Plan" means a plan of the Company providing for the issuance by the Company to all holders of its Common Shares of rights entitling the holders thereof to subscribe for or purchase -9- shares of any class or series of capital stock of the Company which rights (i) are deemed to be transferred with such shares of such Common Shares and (ii) are also issued in respect of future issuances of such Common Shares, in each case until the occurrence of a specified event or events. "Securities" or "Security" means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture. "Securities Act" means the Securities Act of 1933 or any successor statute thereto, in each case as amended from time to time. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 3.6. "Senior Debt" means the principal of, any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not such claim for post-petition interest is allowed in such proceeding) and other amounts in respect of all Debt of the Company, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior in right of payment to the Securities or to other Debt that is pari passu with, or subordinated to, the Securities, provided, that Senior Debt shall not be deemed to include (a) any Securities, (b) any Debt of the Company that, when incurred and without respect to any election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the Company, (c) any Debt of the Company to any of its Subsidiaries, (d) any Debt of the Company to any employee of the Company and (e) trade accounts payable of the Company. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.8. "Stated Maturity," when used with respect to any Security or any installment of principal thereof or any interest (including any Additional Interest) thereon, or any Additional Amounts with respect thereto, 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 (including any Additional Interest) is, or such other amounts are, due and payable, as such date may, in the case of the Stated Maturity of the principal on any Security, be shortened or extended as provided in such Security and this Indenture and, in the case of any installment of interest, subject to the deferral of any such date in the case of any Extension Period. "Subsidiary" means, in respect of any Person, a Person more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries, or by such Person and one or more other Subsidiaries. For purposes of this definition, -10- "voting stock" means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Tax Event" means the receipt by a Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of (a) any amendment to or change (including any announced prospective change) in the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein or (b) any judicial decision or any official administrative pronouncement (including any private letter ruling, technical advice memorandum or field service advice) or regulatory procedure (an "Administrative Action"), regardless of whether such judicial decision or Administrative Action is issued to or in connection with a proceeding involving the Company or such Trust and whether or not subject to review or appeal, which amendment, change, judicial decision or Administrative Action is enacted, promulgated or announced, in each case, on or after the date hereof, there is more than an insubstantial risk that (i) such Trust is, or will be within 90 days of the date of such opinion, subject to United States Federal income tax with respect to income received or accrued on the securities held by such Trust, (ii) interest payable by the Company or original issue discount accruing on Securities issued to such Trust is not, or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States Federal income tax purposes, or (iii) such Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "Trust" has the meaning specified in the first recital of this Indenture. "Trust Agreement" means, with respect to any Trust, the trust agreement or other governing instrument of such Trust. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and as in effect on the date of this Indenture; provided, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trust Securities" has the meaning specified in the first recital of this Indenture. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument, solely in its capacity as such and not in its individual capacity, until a successor Trustee shall have become such 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. -11- 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 (including covenants compliance with which constitutes a condition 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 (including covenants compliance with which constitutes a condition 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 the certificates provided pursuant to Section 10.4) shall include: (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions in such certificate or opinion are based; (iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 1.3. Forms 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 several documents. (b) Any certificate or opinion of an 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 -12- officer knows after reasonable inquiry that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it 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 after reasonable inquiry 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. (d) Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Officers' Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other inadvertent or unintentional error or omission shall be discovered therein, a new document or instrument may be substituted therefor in corrected form with the same force and effect as if originally received in the corrected form and, irrespective of the date or dates of the actual execution and/or delivery thereof, such substitute document or instrument shall be deemed to have been executed and/or delivered as of the date or dates required with respect to the document or instrument for which it is substituted. Without limiting the generality of the foregoing, any Securities issued under the authority of such defective document or instrument shall nevertheless be the valid obligations of the Company entitled to the benefits of this Indenture equally and ratably with all other Outstanding Securities. Section 1.4. Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made 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 is or 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 conclusive in favor of the Trustee, the Company and any agent 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 the certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual -13- signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a Person acting in other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient. (c) The ownership of Securities shall be proved by the Securities Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by 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. (e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided, that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in paragraph (f) of this Section. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date, provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (f) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date, provided, that no such action shall be effective hereunder unless -14- taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (g) With respect to any record date set pursuant to paragraph (e) or (f) of this Section, the party hereto that sets such record date may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided, that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. (h) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Section 1.5. Notices, Etc. to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with: (a) the Trustee by any Holder, any holder of Preferred Securities 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 (b) the Company by the Trustee, any Holder or any holder of Preferred Securities shall be sufficient for every purpose (except as otherwise provided in Section 5.1) hereunder if in writing and mailed, first class, postage prepaid, to the Company, addressed to it at the address of its principal office specified in the first paragraph of this instrument, Attention: General Counsel, or at any other address previously furnished in writing to the Trustee by the Company. -15- Section 1.6. Notice to Holders; Waiver. 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 the address of such Holder as it appears in the Securities Register, not later than the latest date (if any), and not earlier than the earliest date (if any), 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. If, by reason of the suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders when said notice is required to be given pursuant to any provision of this Indenture or of any Security, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient notification for every purpose hereunder. 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. Section 1.7. Conflict with Trust Indenture Act. If any provision of this 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 this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. 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. -16- Section 1.10. Separability Clause. If 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 and assigns, the holders of Senior Debt, the Holders of the Securities and, to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders of Preferred Securities, 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, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. Section 1.13. Non-Business Days. If any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest, premium or principal on or other amounts in respect of such Security need not be made on such date, but may be made on the next succeeding Business Day (and no interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, until such next succeeding Business Day) except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity. Section 1.14. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of, any premium or interest on, or other amounts in respect of, any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, -17- past, present or future, of the Company or of any successor company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of this Indenture and the issue of the Securities. Section 1.15. Submission to Jurisdiction. The Company agrees that any judicial proceedings instituted in relation to any matter arising under this Indenture on the Securities may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Indenture, the Company hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. The Company also irrevocably and unconditionally waives for the benefit of the Trustee and the Holders of the Securities any immunity from jurisdiction and any immunity from legal process (whether through services of notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of this Indenture. The Company hereby irrevocably designates and appoints for the benefit of the Trustee and the Holders of the Securities for the term of this Indenture, CT Corporation, 111 8th Avenue, New York, New York 10011, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to Mutual Risk Management Ltd., 44 Church Street, Hamilton HM 12 Bermuda, Attention: General Counsel), brought against it with respect to any such proceeding in any such court in The City of New York, such service being hereby acknowledged by the Company to be effective and binding service on it in every respect whether or not the Company shall then be doing or shall have at any time done business in New York. Such appointment shall be irrevocable so long as any of the Securities or the obligations of the Company hereunder remain outstanding until the appointment of a successor by the Company and such successor's acceptance of such appointment. Upon such acceptance, the Company shall notify the Trustee of the name and address of such successor. The Company further agrees for the benefit of the Trustee and the Holders of the Securities to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said CT Corporation in full force and effect so long as any of the Securities or the obligations of the Company hereunder shall be outstanding. The Trustee shall not be obligated and shall have no responsibility with respect to any failure by the Company to take any such action. Nothing herein shall affect the right of the Trustee or any Holder to institute proceedings against the Company in the courts of any other jurisdiction or jurisdictions. -18- ARTICLE II Security Forms Section 2.1. Forms Generally. The Securities of each series and the Trustee's certificate of authentication shall be in substantially the forms set forth in this Article, or in such other form or forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the 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 with respect to the authentication and delivery of such Securities. The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods, if required by any securities exchange on which the Securities may be listed, on a steel engraved border or steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such securities. Section 2.2. Form of Face of Security. Mutual Risk Management Ltd. [Title of Security] No. $ MUTUAL RISK MANAGEMENT LTD., a corporation organized and existing under the laws of Bermuda (hereinafter called the "Company", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _______________, or registered assigns, the principal sum of __________ Dollars on __________ __, ___ [if the Security is a Global Security, then insert-- or such other principal amount represented hereby as may be set forth in the records of the Securities Registrar hereinafter -19- referred to in accordance with the Indenture,] [; provided, that the Company may shorten or extend the Stated Maturity of the principal of this Security to a date not earlier than ________ and not later than ________ at any time on one or more occasions, subject to certain conditions specified in Section 3.15 of the Indenture.] The Company further promises to pay interest on said principal sum from , or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [monthly] [quarterly] [semi-annually] [if applicable, insert--(subject to deferral as set forth herein)] in arrears on [insert applicable Interest Payment Dates] of each year, commencing , , at the rate [if fixed rate, insert -- of %] [if floating rate, insert --- equal to % in excess of the Floating Rate Index] per annum, [if applicable, insert -- together with Additional Tax Sums, if any, as provided in Section 10.7 of the Indenture] until the principal hereof is paid or duly provided for or made available for payment [if applicable, insert-- ; provided, that any overdue principal, premium, Additional Amounts, Additional Tax Sums and any overdue installment of interest shall bear additional interest at the rate [if fixed rate, insert --- of %] [if floating rate, insert --- equal to % in excess of the Floating Rate Index] per annum (to the extent that the payment of such interest shall be legally enforceable), compounded [monthly] [quarterly] [semi-annually], from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The Company is also obligated to pay any Additional Amounts as described in Section 10.5 of the Indenture. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. The amount of interest payable for any full interest period shall be computed by dividing the applicable rate per annum by [twelve/four/two]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment [if applicable, insert--, which shall be the [____________ or ____________] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date]. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (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 Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. [If applicable, insert--So long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time during the term of this Security, from time to time to defer the payment of interest on this Security for up to consecutive [monthly] [quarterly] [semi- annual] interest payment periods with respect to each deferral period (each an "Extension Period") [If applicable, insert--, during which Extension Periods the Company shall have the right to make -20- no payments or partial payments of interest on any Interest Payment Date, and] at the end of which the Company shall pay all interest then accrued and unpaid including any Additional Interest, as provided below; provided, that no Extension Period shall extend beyond the Stated Maturity of the principal of this Security [If Stated Maturity can be shortened or extended, insert--, as then in effect,] and no such Extension Period may end on a date other than an Interest Payment Date; and provided, further, that during any such Extension Period, the Company shall not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company's capital stock or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to this Security (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (b) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (c) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). Prior to the termination of any such Extension Period, the Company may further defer the payment of interest, provided, that no Extension Period shall exceed consecutive [monthly] [quarterly] [semi-annual] interest payment periods, extend beyond the Stated Maturity of the principal of this Security or end on a date other than an Interest Payment Date. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due on any Interest Payment Date, the Company may elect to begin a new Extension Period, subject to the above conditions. No interest shall be due and payable during an Extension Period, except at the end thereof, but each installment of interest that would otherwise have been due and payable during such Extension shall bear Additional Interest (to the extent that the payment of such interest shall be legally enforceable) at the rate of [if fixed rate, insert -- %] [if floating rate, insert -- equal to % in excess of the Floating Rate Index] per annum, compounded [monthly] [quarterly] [semi-annually] and calculated as set forth in the first paragraph of this Security, from the dates on which amounts would otherwise have been due and payable until paid or made available for payment. The Company shall give the Holder of this Security and the Trustee notice of its election to begin any Extension Period at least one Business Day prior to the next -21- succeeding Interest Payment Date on which interest on this Security would be payable but for such deferral [if applicable, insert--or so long as such Securities are held by [insert name of applicable Trust], at least one Business Day prior to the earlier of (i) the next succeeding date on which Distributions on the Preferred Securities of such Trust would be payable but for such deferral and (ii) the date on which the Administrative Trustees of such Trust are required to give notice to holders of such Preferred Securities of the record date or the date such Distributions are payable]. Payment of the principal of, any premium and interest on or any Additional Amounts with respect to this Security will be made at the office or agency of the Company maintained for that purpose in the [insert Place of Payment], in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert--; provided, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by wire transfer to an account at a banking institution in the United States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date]. The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. -22- IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. MUTUAL RISK MANAGEMENT LTD. By:_____________________________________ Name: Title: Attest: __________________________________ [Secretary or Assistant Secretary] Section 2.3. Form of Reverse of Security. This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under the Junior Subordinated Indenture, dated as of ___ _, ___ (herein called the "Indenture"), between the Company and The Chase Manhattan Bank as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the holders of Senior Debt and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert--, limited in aggregate principal amount to $___________]. All terms used in this Security that are defined in the Indenture [if applicable, insert--or in the Amended and Restated Trust Agreement, dated as of _________, ___ (as modified, amended or supplemented from time to time, the "Trust Agreement"), relating to [insert name of Trust] (the "Trust") among Mutual Group Ltd., a Delaware corporation, as Depositor, the Company, as Issuer, the Trustees named therein and the Holders from time to time of the Trust Securities issued pursuant thereto,] shall have the meanings assigned to them in the Indenture [if applicable, insert--or the Trust Agreement, as the case may be]. The terms of this Security include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act. This Security is subject to all such terms and the Holder of this Security is referred to the Indenture and the Trust Indenture Act for a statement of such terms. -23- [If applicable, insert--The Company may at any time, at its option, on or after _________, ____, and subject to the terms and conditions of Article XI of the Indenture, redeem this Security in whole at any time or in part from time to time, at [if applicable, insert-- the following Redemption Prices (expressed as percentages of the principal amount hereof): If redeemed during the 12-month period beginning _____________, Redemption Year Price ---- ---------- and thereafter at a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest [if applicable, insert--, including any Additional Interest,] to but excluding the date fixed for redemption,] [a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest [if applicable, insert--, including any Additional Interest,] to but excluding the date fixed for redemption.] [If applicable, insert--In addition, upon the occurrence and during the continuation of a Tax Event or an Investment Company Event in respect of the Trust, the Company may, at its option, at any time within 90 days of the occurrence and during the continuation of such Tax Event or Investment Company Event, as the case may be, redeem this Security, in whole but not in part, subject to the terms and conditions of Article XI of the Indenture, at a redemption price equal to [insert formula]. [If the Security is subject to redemption of any kind, insert--In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.] [If applicable, insert - The Securities of this series are not redeemable prior to Stated Maturity.] [The Indenture contains provisions for satisfaction and discharge of [the entire indebtedness of] [or] [certain restrictive covenants and Events of Default with respect to] this Security [, in each case] upon compliance by the Company with certain conditions set forth in the Indenture.] The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying -24- in any manner the rights and obligations of the Company and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities of each 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 Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security 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 Security. [If the Security is not a Discount Security, insert--As provided in and subject to the provisions of the Indenture, if an Event of Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of this series may declare the principal amount of all the Securities of this series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders) [if applicable, insert--, provided, that, if upon an Event of Default, the Trustee or such Holders fail to declare the principal of all the Outstanding Securities of this series to be immediately due and payable, the holders of at least 25% in aggregate Liquidation Amount of the Preferred Securities then Outstanding shall have the right to make such declaration by a notice in writing to the Company and the Trustee]; and upon any such declaration the principal amount of and the accrued interest (including any Additional Interest) on all the Securities of this series shall become immediately due and payable, provided, that the payment of principal and interest (including any Additional Interest) on such Securities shall remain subordinated to the extent provided in Article XIV of the Indenture.] [If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.] No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, any premium and interest [insert if applicable--including any Additional Interest)] on and any Additional Amounts with respect to this Security at the times, place and rate, and in the coin or currency, herein prescribed. -25- As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Indenture for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Securities of this series, of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $_______ and any integral multiple of $____________ in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary. The Company and, by its acceptance of this Security or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Security agree that for United States Federal, state and local tax purposes it is intended that this Security constitute indebtedness. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. Section 2.4. Additional Provisions Required in Global Security. Unless otherwise specified as contemplated by Section 3.1, any Global Security issued hereunder shall, in addition to the provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the following form: "THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS -26- EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND 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, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE." Section 2.5. Form of Trustee's Certificate of Authentication. The Trustee's certificates 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. Dated: THE CHASE MANHATTAN BANK, as Trustee By:_____________________________________ Authorized officer ARTICLE III The Securities Section 3.1. Title and Terms. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and set forth in an Officers' Certificate or established in one or more indentures supplemental hereto: (a) the title of the securities of such series, which shall distinguish the Securities of the series from all other Securities; -27- (b) the limit, if any, upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to the provisions of this Indenture and except for any Securities that, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder); (c) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the method of determination thereof, and any dates on which or circumstances under which, the Company shall have the right to extend or shorten such Stated Maturity or Maturities; (d) the rate or rates at which the Securities of such series shall bear interest, if any, and, if such interest is determined by reference to a floating interest rate, the Floating Rate Index and Calculation Agent, the rate or rates and extent to which Additional Interest, if any, shall be payable in respect of any Securities of such series, the date or dates from which any such interest or Additional Interest shall accrue, the Interest Payment Dates on which such interest shall be payable, the right, pursuant to Section 3.12 or as otherwise set forth therein, of the Company to defer or extend an Interest Payment Date, and the Regular Record Date for the interest payable on any Interest Payment Date or the method by which any of the foregoing shall be determined; (e) the place or places where the principal of, any premium and interest (including any Additional Interest) on and any Additional Amounts with respect to the Securities of such series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, any restrictions that may be applicable to any such transfer or exchange in addition to or in lieu of those set forth herein, and the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made; (f) the obligation of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions, or at the option of the Company or a Holder thereof, and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation or option; (g) if the amount of principal of or any premium or interest on any Securities of such series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined; -28- (h) if other than Dollars, the currency or currencies (including any currency unit or units) in which the principal of, any premium and interest (including any Additional Interest) on and any Additional Amounts with respect to the Securities of the series shall be payable, or in which the Securities of the series shall be denominated and the manner of determining the equivalent thereof in Dollars for any purpose, including for purposes of the definition of Outstanding; (i) if the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of, any premium or interest on or any Additional Amounts with respect to such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable or the manner in which such amount shall be determined; (j) if other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof; (k) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined; (l) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.2 or Section 13.3 or both such Sections; (m) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends that shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.4 and any circumstances in addition to or in lieu of those set forth in Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof; -29- (n) the additions, modifications or deletions, if any, in the Events of Default or covenants of the Company set forth herein with respect to the Securities of such series; (o) the appointment of any Paying Agent or agents for the Securities of such series; (p) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange; (q) if such Securities are to be initially issued to a Trust, the form or forms of the Trust Agreement and Guarantee Agreement relating thereto; (r) if other than as set forth herein, the relative degree, if any, to which the Securities of the series shall be senior to or be subordinated to other series of Securities in right of payment, whether such other series of Securities are Outstanding or not; (s) the denominations in which any Securities of such series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof; and (t) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.1(e)). All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any indenture supplemental hereto. 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. The Securities shall be subordinated in right of payment to Senior Debt as provided in Article XIV. Section 3.2. Denominations. The Securities of each series shall be issuable only in registered form without coupons and in denominations of $1,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified as contemplated by Section 3.1. -30- Section 3.3. Execution, Authentication, Delivery and Dating. (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents 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. 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. (b) 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 by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by 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 shall be fully protected in relying upon, an Opinion of Counsel stating: (i) if the form 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; (ii) if the terms 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 (iii) 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 terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. If 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 will affect the Trustee's own rights, duties, indemnities or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee. -31- (c) Notwithstanding the provisions of Section 3.1 and of paragraph (b) of this Section, 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 paragraph (b) of this Section at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. (d) 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 the manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. 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 3.10, 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. (e) Each Security shall be dated the date of its authentication. Section 3.4. Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities that 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, and 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 such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company designated for that purpose without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations having the same Original Issue Date and Stated Maturity and having the same terms as such temporary Securities. 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. -32- Section 3.5. Global Securities. (a) Each Global Security issued under this Indenture shall be registered in the name of the Depositary designated by the Company for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. (b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (i) such Depositary advises the Trustee and the Company in writing that such Depositary is no longer willing or able to properly discharge its responsibilities as Depositary with respect to such Global Security and no qualified successor is appointed by the Company within 90 days of receipt by the Company of such notice, (ii) such Depositary has ceased to be a clearing agency registered under the Exchange Act and no qualified successor is appointed by the Company within 90 days after its receipt of notice or its becoming aware of such event, (iii) the Company executes and delivers to the Trustee a Company Order stating that the Company elects to terminate the book-entry system through the Depositary or (iv) there shall have occurred and be continuing an Event of Default with respect to such Global Security. (c) If any Global Security is to be exchanged for other Securities or canceled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Securities Registrar for exchange or cancellation as provided in this Article. If any Global Security is to be exchanged for other Securities or canceled in part, or if another Security is to be exchanged in whole or in part for a beneficial interest in any Global Security, then either (i) such Global Security shall be so surrendered for exchange or cancellation as provided in this Article or (ii) the principal amount thereof shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or canceled, or equal to the principal amount of such other Security to be so exchanged for a beneficial interest therein, as the case may be, by means of an appropriate adjustment made on the records of the Securities Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Security by the Depositary, accompanied by registration instructions, the Trustee shall, subject to this Section and as otherwise provided in this Article, authenticate and deliver any Securities issuable in exchange for such Global Security (or any portion thereof) in accordance with the instructions of the Depositary. The Trustee shall not be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. (d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Article, Section 9.6 or 11.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, -33- a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. (e) Securities distributed to holders of Book-Entry Preferred Securities (as defined in the applicable Trust Agreement) upon the dissolution of a Trust shall be distributed in the form of one or more Global Securities registered in the name of a Depositary or its nominee, and deposited with the Securities Registrar, as custodian for such Depositary, or with such Depositary, for credit by the Depositary to the respective accounts of the beneficial owners of the Securities represented thereby (or such other accounts as they may direct). Securities distributed to holders of Preferred Securities other than Book-Entry Preferred Securities upon the dissolution of a Trust shall not be issued in the form of a Global Security or any other form intended to facilitate book-entry trading in beneficial interests in such Securities. (f) The Depositary or its nominee, as the registered owner of a Global Security, shall be the Holder of such Global Security for all purposes under this Indenture and the Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly, any such owner's beneficial interest in a Global Security shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members. Neither the Trustee nor the Securities Registrar shall have any liability in respect of any transfers effected by the Depositary. (g) The rights of owners of beneficial interests in a Global Security shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such owners and the Depositary and/or its Agent Members. (h) The registered holder of a Global Security may grant proxies to any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture and the Securities. Section 3.6. Registration, Transfer and Exchange. (a) The Company shall cause to be kept at the Corporate Trust Office a 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 "Securities Register"). The Trustee is hereby appointed "Securities 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 a series at the office or agency of the Company designated for that purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more -34- new Securities of the same series of any authorized denominations and of like tenor and aggregate principal amount. (c) At the option of the Holder, Securities of a series may be exchanged for other Securities of the same series of any authorized denominations and of like tenor and aggregate principal amount, 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 that the Holder making the exchange is entitled to receive. (d) All Securities issued upon any 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 transfer or exchange. (e) Every Security presented or surrendered for 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 Securities Registrar, duly executed by the Holder thereof or such Holder's attorney duly authorized in writing. (f) No service charge shall be made to a Holder for any transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Securities. (g) The Company shall not be required to issue, register the transfer of or exchange any Security 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 any such Securities 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 such Security to be redeemed in part. (h) Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities. (a) If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series, of like tenor and aggregate principal amount and bearing a number not contemporaneously outstanding. -35- (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 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 the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series, of like tenor and principal amount as such destroyed, lost or stolen Security and bearing a number not contemporaneously outstanding. (c) If 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 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) connected therewith. (e) Every new Security of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, 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 the same series duly issued hereunder. (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 3.8. Payment of Interest and Additional Interest; Interest Rights Preserved. (a) Except as otherwise contemplated by Section 3.1 with respect to any series of Securities, interest and Additional Interest on any Security of any series that 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 in respect of Securities of such series, except that, unless otherwise provided in the Securities of such series, interest and any Additional Interest payable on the Stated Maturity, redemption or repayment of the principal of a Security shall be paid to the Person to whom principal is paid. The initial payment of interest on any Security of any series that is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 3.1 with respect to the related series of Securities. -36- (b) Any interest on any Security of any series that is due and payable, but is not timely paid or duly provided for, on any Interest Payment Date for Securities of such series (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date 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 paragraph (i) or (ii) below: (i) 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 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 at least 30 days prior to such date, 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. Thereupon the Trustee shall fix a 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 given to each Holder of Securities of such series in the manner set forth in Section 1.6 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; or (ii) The Company may 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) Unless otherwise provided in or pursuant to this Indenture or any supplemental indenture, interest on the Securities of any series will be payable, at the option of the Company, (i) by check mailed to the address of the Holder as such address appears in the Securities Register for the Securities of such series or (ii) by wire transfer to an account at a banking institution in the United -37- States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date. Section 3.9. Persons Deemed Owners. (a) 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, any premium and (subject to Section 3.8) interest on and any other amounts with respect to such Security and for all other purposes whatsoever, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary. (b) No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee or any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominee) as Holder of any Security. Section 3.10. Cancellation. All Securities surrendered for payment, redemption, 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 any such Securities surrendered to the Trustee for any such purpose 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 that the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder that 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 by the Trustee in accordance with its customary practices and the Trustee shall deliver to the Company a certificate of such disposition. -38- Section 3.11. 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 for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in any partial month in such period, and interest on the Securities of each series for a full period shall be computed by dividing the rate per annum by the number of interest periods that together constitute a full twelve months. Section 3.12. Deferrals of Interest Payment Dates. If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of a particular series, so long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time during the term of such series, from time to time to defer the payment of interest on such Securities for such period or periods as may be specified as contemplated by Section 3.1 (each such period, an "Extension Period"), during which Extension Periods the Company shall have the right to make no payments or partial payments of interest on any Interest Payment Date. No Extension Period shall end on a date other than an Interest Payment Date. At the end of any such Extension Period, the Company shall pay all interest then accrued and unpaid on the Securities together with any Additional Interest thereon at the rate specified for the Securities of such series to the extent permitted by applicable law; provided, that no Extension Period shall extend beyond the Stated Maturity of the principal of the Securities of such series; and provided, further, that during any such Extension Period, the Company shall not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company's capital stock or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (b) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (c) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights -39- where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). Prior to the termination of any such Extension Period, the Company may further defer the payment of interest, provided, that no Extension Period shall exceed the period or periods specified in such Securities, extend beyond the Stated Maturity of the principal of such Securities or end on a date other than an Interest Payment Date. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due on any Interest Payment Date, the Company may elect to begin a new Extension Period, subject to the above conditions. No interest or Additional Interest shall be due and payable during an Extension Period, except at the end thereof, but each installment of interest that would otherwise have been due and payable during such Extension Period shall bear Additional Interest as and to the extent as may be specified as contemplated by Section 3.1. The Company shall give the Holders of the Securities of such series and the Trustee written notice of its election to begin any such Extension Period at least one Business Day prior to the next succeeding Interest Payment Date on which interest on Securities of such series would be payable but for such deferral or, with respect to any Securities of a series initially issued to a Trust, so long as any such Securities are held by such Trust, at least one Business Day prior to the earlier of (i) the next succeeding date on which Distributions on the Preferred Securities of such Trust would be payable but for such deferral and (ii) the date on which the Property Trustee of such Trust is required to give notice to any securities exchange or other applicable self-regulatory organization or to holders of such Preferred Securities of the record date or the date such Distributions are payable. Section 3.13. Right of Set-Off. With respect to the Securities of a series initially issued to a Trust, notwithstanding anything to the contrary herein, the Company shall have the right to set off any payment it is otherwise required to make in respect of any such Security to the extent the Company has theretofore made, or is concurrently on the date of such payment making, a payment under the Guarantee Agreement relating to such Security or to a holder of Preferred Securities pursuant to an action undertaken under Section 5.8 of this Indenture. Section 3.14. Agreed Tax Treatment. Each Security issued hereunder shall provide that the Company and, by its acceptance or acquisition of a Security or a beneficial interest therein, the Holder of, and any Person that acquires a direct or indirect beneficial interest in, such Security, intend and agree to treat such Security as indebtedness of the Company for United States Federal, state and local tax purposes and, with respect to Securities of a series initially issued to a Trust, to treat Preferred Securities of such Trust (including but not limited to all payments and proceeds with respect to such Preferred Securities) as an undivided beneficial ownership interest in the Securities (and payments and proceeds -40- therefrom, respectively) for United States Federal, state and local tax purposes. The provisions of this Indenture shall be interpreted to further this intention and agreement of the parties. Section 3.15. Shortening and Extending Stated Maturity. (a) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to shorten the Stated Maturity of the principal of the Securities of such series at any time to any date not earlier than the first date on which the Company has the right to redeem the Securities of such series. In the event that the Company elects to shorten the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. (b) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to extend the Stated Maturity of the principal of the Securities of such series at any time. In the event that the Company elects to extend the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. Section 3.16. 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 and other similar or related materials as a convenience to Holders; provided, that any such notice or other materials may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or other materials 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. ARTICLE IV Satisfaction and Discharge Section 4.1. Satisfaction and Discharge of Indenture. Upon a Company Request, this Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for, and as otherwise provided in this Section) and the Trustee, on the demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) either -41- (i) all Securities theretofore authenticated and delivered (other than (A) Securities that have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.7 and (B) Securities 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) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year of the date of deposit, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of paragraph (ii)(A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose (x) an amount in the currency or currencies in which the Securities of such series are payable, (y) 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 (z) a combination thereof, in each case where any Government Obligations are deposited, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal, any premium and interest (including any Additional Interest) thereon and any Additional Amounts in respect thereof to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (c) 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. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7, the obligations of the Company to any Authenticating -42- Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to paragraph (a)(ii) of this Section, the obligations of the Trustee under Section 4.2 and Section 10.3(e) shall survive. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to this Section 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 Outstanding Securities. Section 4.2. Application of Trust Money. Subject to the provisions of Section 10.3(e), all money and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by the Trustee, 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 its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium, interest (including any Additional Interest) and Additional Amounts for the payment of which such money and Government Obligations (including the proceeds thereof) have been deposited with or received by the Trustee. Moneys held by the Trustee under this Section shall not be subject to the claims of holders of Senior Debt under Article XIV. ARTICLE V Remedies Section 5.1. Events of Default. "Event of Default", wherever used herein with respect to the 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) except as may be specified pursuant to Section 3.1: (a) default in the payment of any interest upon any Security of that series, including any Additional Interest in respect thereof, or any Additional Amounts payable with respect thereto, when such interest becomes, or such Additional Amounts become, due and payable, and continuance of such default for a period of 30 days (subject to the deferral of any due date in the case of an Extension Period); or -43- (b) default in the payment of the principal of or any premium on any Security of that series at its Maturity, or any Additional Amounts payable with respect thereto, when such principal or premium becomes, or such Additional Amounts become, due and payable at their Maturity; or (c) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of such series; or (d) 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 specifically dealt with elsewhere in this Section or that has expressly been included in this Indenture solely for the benefit of series of Securities other than such series), and continuance of such default or breach for a period of 30 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, unless the Trustee, or the Trustee and the Holders of a principal amount of Securities of such series not less than the principal amount of Securities that gave such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; or (e) a default under any (i) indebtedness for any money borrowed by the Company (including a default with respect to Securities of any series other than that series), (ii) mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company, or (iii) guarantee of payment for money borrowed, which default shall consist of a payment default at the stated maturity thereof, after giving effect to any applicable grace period, or shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness or accelerated indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have 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 and requiring the Company to cause such indebtedness or accelerated indebtedness to be discharged or cause such acceleration to be rescinded or annulled, as the case may be, and stating that such notice is a "Notice of Default" hereunder; provided, that a default shall exist under this subsection only if the aggregate principal amount outstanding under all such indebtedness that is so in default or has become due prior to the date on which it would otherwise become due and payable exceeds $40,000,000; or (f) the Company shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $40,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or -44- (g) the entry by a court having jurisdiction in the premises of 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, State or foreign bankruptcy, insolvency, reorganization or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of the Company's property, or ordering the winding up or liquidation of the Company's 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 (h) the filing by the Company of a petition or answer or consent seeking reorganization or relief under any applicable Federal, State or foreign bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of such petition or to the appointment of or taking pos session by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of the Company's property, or the making by the Company of an assignment for the benefit of creditors, or the admission by it in writing of the Company's inability to pay its debts generally as they become due, or the authorization of any such action by the Board of Directors; or (i) any other Event of Default provided with respect to Securities of that series. 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 Section 5.1(g) or (h)) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount of, all unpaid accrued interest (including any Additional Interest) and premium on and Additional Amounts with respect to all of the Securities of that series (or, if the Securities of that series are Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms 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), provided, that in the case of the Securities of a series initially issued to a Trust, if, upon an Event of Default, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series fail to declare the principal of all the Outstanding Securities of such series to be immediately due and payable, the holders of at least 25% in aggregate Liquidation Amount (as defined in the related Trust Agreement) of the related series of Preferred Securities issued by such Trust then outstanding shall have the right to make such declaration by a notice in writing to the Property Trustee, the Company and the Trustee; and upon any such declaration such principal amount (or specified portion thereof) of accrued interest (including any Additional Interest), premium and Additional Amounts on all the Securities of such series shall become immediately due and payable; provided, that the payment of principal and interest and all -45- other amounts due with respect to such Securities shall remain subordinated to the extent provided in Article XIV. If an Event of Default specified in Section 5.1(g) or (h) occurs, all unpaid principal of, accrued interest (including any Additional Interest) and premium on and Additional Amounts with respect to the Outstanding Securities of that series (or such lesser amount as may be provided for in the Securities of such series) shall automatically become and 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 aggregate principal amount of the Outstanding Securities of that series, by written notice to the Property Trustee (in the case of the Securities of a series initially issued to a Trust), the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay: (A) all overdue installments of interest (including Additional Interest) on all Securities of such series and any Additional Amounts with respect thereto, (B) the principal of and any premium on any Securities of such series that have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and any interest thereon at the rate prescribed therefor in such Securities, (C) all overdue sinking fund payments with respect to Securities of such series and interest thereon at the rate prescribed therefor in such Securities, (D) to the extent that payment of such interest is lawful, interest upon overdue installments of interest (including any Additional Interest) and Additional Amounts at the rate prescribed therefor in such Securities, and (E) 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 (ii) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series that has become due solely by such acceleration, have been cured or waived as provided in Section 5.13. -46- (c) In the case of Securities of a series initially issued to a Trust, if the Holders of such Securities fail to annul such declaration and waive such default, the holders of not less than a majority in aggregate Liquidation Amount (as defined in the related Trust Agreement) of the related series of Preferred Securities issued by such Trust then outstanding shall also have the right to rescind and annul such declaration and its consequences by written notice to the Property Trustee, the Company and the Trustee, subject to the satisfaction of the conditions set forth in paragraph (b) of this Section 5.2. No such rescission shall affect any subsequent default or impair any right consequent thereon. Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. (a) The Company covenants that if: (i) default is made in the payment of any installment of interest (including any Additional Interest) on or any Additional Amounts, payable with respect to such interest, with respect to any Security of any series when such interest or Additional Amounts become due and payable and such default continues for a period of 30 days, or (ii) default is made in the payment of the principal of or any premium on any Security or any Additional Amounts with respect thereto at the Maturity thereof, or (iii) default is made in the deposit of any sinking fund payment, when and as due by the terms of a Security of any series, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, any premium and interest (including any Additional Interest) and any Additional Amounts and, to the extent that such interest shall be legally enforceable, interest on any overdue principal, premium, interest (including Additional Interest) and Additional Amounts at the rate prescribed therefor in such Securities, and in addition thereto, all amounts owing to the Trustee, its agents and counsel under Section 6.7. (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 Security 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 the Security, 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 -47- Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual 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. In case of any judicial proceeding relative to the Company or any other obligor upon the Securities, its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and 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 any amounts due the Trustee, its agents and counsel under Section 6.7. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or 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; provided, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. 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, subject to Article XIV and after provision for the payment of all the amounts owing the Trustee, its agents and counsel under Section 6.7, 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 or property collected or to be applied by the Trustee with respect to a series of Securities 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 or property on account of principal, any premium or interest (including any Additional Interest) or any Additional Amounts, upon -48- 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, its agents and counsel under Section 6.7; SECOND: Subject to Article XIV, to the payment of the amounts then due and unpaid for principal and any premium, interest (including any Additional Interest) and any Additional Amounts 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, any premium and interest (including any Additional Interest) and any Additional Amounts, respectively; and THIRD: The balance, if any, to the Person or Persons entitled thereto. Section 5.7. Limitation on Suits. Subject to Section 5.8, 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, assignee, trustee, liquidator, sequestrator (or other similar official) or for any other remedy hereunder, unless: (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (b) the Holders of not less than a majority in aggregate 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; (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding for 60 days; and (e) 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 aggregate 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, or by availing itself of, any provision of this Indenture to affect, -49- disturb or prejudice the rights of any other 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 such Holders. Section 5.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Tax Sums; Direct Action by Holders of Preferred Securities. Notwithstanding any other provision in this Indenture, the Holder of any Security of any series shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject to Sections 3.8 and 3.12) interest (including any Additional Interest) on and any Additional Amounts with respect to such Security on the respective Stated 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 right shall not be impaired without the consent of such Holder. In the case of Securities of a series initially issued to a Trust, any registered holder of the series of Preferred Securities issued by such Trust shall have the right, upon the occurrence of an Event of Default described in Section 5.1(a) or (b), to institute a suit directly against the Company for enforcement of payment to such holder of principal of, any premium and (subject to Sections 3.8 and 3.12) interest (including any Additional Interest) on and any Additional Amounts with respect to the Securities having a principal amount equal to the aggregate Liquidation Amount (as defined in the related Trust Agreement) of such Preferred Securities held by such holder. Section 5.9. Restoration of Rights and Remedies. If the Trustee, any Holder or any holder of Preferred Securities issued by any Trust 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, such Holder or such holder of Preferred Securities, then and in every such case the Company, the Trustee, such Holders and such holder of Preferred Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee, such Holder and such holder of Preferred Securities shall continue as though no such proceeding had been instituted. Section 5.10. Rights and Remedies Cumulative. Except as otherwise provided in Section 3.7(f), no right or remedy herein conferred upon or reserved to the Trustee or 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. -50- Section 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee, any Holder of any Securities or any holder of any Preferred Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders and the right and remedy given to the holders of Preferred Securities by Section 5.8 may be exercised from time to time, and as often as may be deemed expedient, by the Trustee, the Holders or the holders of Preferred Securities, as the case may be. Section 5.12. Control by Holders. The Holders of not less than a majority in aggregate 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: (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, and (c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if a Responsible Officer or Officers of the Trustee shall, in good faith, determine that the proceeding so directed would be unjustly prejudicial to the Holders not joining in any such direction or would involve the Trustee in personal liability. Section 5.13. Waiver of Past Defaults. (a) The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series affected thereby and, in the case of any Securities of a series initially issued to a Trust, the holders of a majority in aggregate Liquidation Amount (as defined in the related Trust Agreement) of the Preferred Securities issued by such Trust may waive any past Event of Default hereunder with respect to such series and its consequences, except an Event of Default: (i) in the payment of the principal of, any premium or interest (including any Additional Interest) on or any Additional Amounts with respect to any Security of such series (unless such Event of Default has been cured and the Company has paid to or deposited with the Trustee a sum sufficient to pay all matured installments of interest (including any Additional Interest) and all principal of, any premium on and all Additional Amounts with respect to, all Securities of that series due otherwise than by acceleration), or -51- (ii) in respect of a covenant or provision hereof that under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. (b) Any such waiver shall be deemed to be on behalf of the Holders of all the Securities of such series or, in the case of a waiver by holders of Preferred Securities issued by such Trust, by all holders of Preferred Securities issued by such Trust. (c) Upon any such waiver, such Event of 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 Event of Default or impair any right consequent thereon. Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his or her 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, omitted or suffered 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 and expenses, 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, 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 aggregate 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, any premium or interest (including any Additional Interest) on or any Additional Amounts with respect to any Security on or after the Stated 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. -52- ARTICLE VI The Trustee Section 6.1. Certain Duties and Responsibilities. The rights, immunities, duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, 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 reason able grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. 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. If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default actually known to the Trustee within 90 days after it occurs unless such default shall have been cured or waived; provided, that except in the case of a default in the payment of the principal of, any premium or interest (including any Additional Interest) on or any Additional Amounts with respect to any Securities of any series or in the making of any sinking fund payment payable with respect to Securities of any series, the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interest of Holders of Securities of that series; and provided, further, that in the case of any default of the character specified in Section 5.1(d) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" 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 protected in acting or refraining from acting in good faith upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; -53- (b) any request or direction of the Company shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall 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, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that 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, security or other paper or document, but the Trustee in its discretion may make such inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (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; (h) the Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Indenture; (i) no permissive power or authority available to the Trustee shall be construed to be a duty; (j) the Trustee shall not be charged with knowledge of any Event of Default unless either (i) a Responsible Officer of the Trustee assigned to its Corporate Trust Office shall have actual knowledge thereof or (ii) the Trustee shall have received notice thereof from the Company or a Holder; and -54- (k) in the event that the Trustee is also acting as Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar hereunder, the rights and protections afforded to the Trustee pursuant to this Article shall also be afforded such Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar. 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 neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof. Section 6.5. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other agent of the Company, 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, Securities 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. (a) The Company agrees: (i) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder in such amounts as the Company and the Trustee shall agree from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (ii) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and -55- disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (iii) to indemnify the Trustee and its officers, directors, agents and employees for, and to hold them harmless against, any loss, liability, damage, claim or expense (including the reasonable compensation, expenses and disbursements of its counsel and agents) incurred without negligence or bad faith, arising out of or in connection with the acceptance or administration of this trust or the performance of the Trustee's duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. (b) The Trustee shall have a lien prior to the Securities upon all property and funds held or collected by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section, except with respect to funds held in trust for the benefit of the Holders of particular Securities. (c) Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(g) or 5.1(h) occurs, the expenses (including the reasonable charges and expenses of its agents and counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal, State or foreign bankruptcy, insolvency or other similar law. (d) The obligations of the Company under this Section shall survive the satisfaction and discharge of this Indenture, the defeasance of the Securities and the earlier resignation or removal of the Trustee. Section 6.8. Conflicting Interests. (a) If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or under any other indenture with respect to securities issued or guaranteed by the Company. (b) The Trust Agreement and the Guarantee Agreement with respect to each Trust shall be deemed to be specifically described in this Indenture for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. -56- Section 6.9. Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be the Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person 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 with respect to the Securities of any series 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. Neither the Company nor any Person directly or indirectly controlling, controlled by or under common control with the Company shall serve as Trustee for the Securities of any series issued hereunder. 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 under Section 6.11. (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 an instrument of acceptance by a successor Trustee 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 aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Company. (d) If at any time: (i) 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 (ii) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or by any such Holder, or -57- (iii) 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, (x) the Company, by a Board Resolution, may remove the Trustee with respect to the Securities of all series issued hereunder or (y) subject to Section 5.14, any such Holder may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to the Securities of all series issued hereunder 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 with respect to the Securities of that or those series. If, 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 aggregate 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, become the successor Trustee with respect to the Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so 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, subject to Section 5.14, on behalf of such Holder 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 to all Holders of Securities of such series. 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 to 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 -58- 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 (i) 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, (ii) 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 (iii) 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 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, upon payment of its charges, 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 rights, powers and trusts referred to in paragraph (a) or (b) of this Section, 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. -59- 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 of 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, and in case any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate of authentication shall have the full force which it is provided anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have. Section 6.13. Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). Section 6.14. Appointment of Authenticating Agent. (a) The Trustee may 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 original issue (in accordance with procedures acceptable to the Trustee) and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.7, and 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 certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, or of 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 said supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such Authenticating Agent shall be -60- 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, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. (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 all or substantially all of the corporate trust business of an Authenticating Agent shall be the successor Authenticating Agent hereunder, 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. 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 appoint a successor Authenticating Agent eligible under the provisions of this Section, which shall be acceptable to the Company, and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. 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. (d) The Company agrees to pay to each Authenticating Agent 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 addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: -61- This is one of the Securities of the series designated therein referred to in the within mentioned Indenture. Dated: THE CHASE MANHATTAN BANK, As Trustee By:_______________________________, As Authenticating Agent By:______________________________ Authorized Officer ARTICLE VII Holder's Lists and Reports by Trustee and Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee: (a) 15 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record 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, in each case to the extent such information is in the possession or control of the Company and has not otherwise been received by the Trustee in its capacity as Securities Registrar. -62- 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 Securities 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) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided in the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee or any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act. Section 7.3. Reports by Trustee. (a) If required by Section 3.13(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each September 15 following the date of this Indenture, deliver to the Holders a brief report, dated as of such September 15, which complies with the provisions of Section 313(a) of the Trust Indenture Act. (b) The Trustee shall transmit to Holders such other reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange or system upon which any Securities are listed or traded, with the Commission and with the Company. The Company shall notify the Trustee when any Securities are listed or traded on any securities exchange or system. Section 7.4. Reports by Company. (a) The Company shall furnish to the Holders and to prospective purchasers of Securities that are not registered under the Securities Act, upon their request, the information required to be furnished pursuant to Rule 144A(d)(4) under the Securities Act. (b) The Company shall file with the Trustee and with the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be -63- required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act; provided, that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is required to be filed with the Commission. ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless: (a) if the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of the Company substantially as an entirety shall be a corporation existing under the laws of the United States of America, any State thereof, the District of Columbia or Bermuda 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, any premium and interest (including any Additional Interest) on and any Additional Amounts with respect to all the Securities of every series and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time, or both, would constitute an Event of Default, shall have occurred and be continuing; and (c) 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, any such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with; and the Trustee may rely upon such Officers' Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Section. -64- Section 8.2. Successor Company Substituted. (a) Upon any consolidation of the Company with, or merger of the Company into, any other Person, or any conveyance, transfer or lease by the Company of its properties and assets substantially as an entirety to any Person in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or 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 Company shall be discharged from all obligations and covenants under this Indenture and the Securities. (b) Such successor Person may cause to be executed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication pursuant to such provisions and any Securities that such successor Person thereafter shall cause to be executed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture. (c) In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form may be made in the Securities thereafter to be issued as may be appropriate. 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 any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (a) to establish the form or terms of Securities of any series as permitted by Sections 2.1 or 3.1; or (b) 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 -65- (c) 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 (d) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or (e) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided, that any such addition, change or elimination shall (i) become effective only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision or (ii) shall not apply to any Outstanding Securities; or (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or (g) to cure any ambiguity, to correct or supplement any provision herein that 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, that such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect or, in the case of the Securities of a series initially issued to a Trust and for so long as any of the corresponding series of Preferred Securities issued by such Trust shall remain outstanding, the holders of such Preferred Securities; or (h) to comply with the requirements of the Commission in order to effect or maintain qualification of this Indenture under the Trust Indenture Act. Section 9.2. Supplemental Indentures With Consent of Holders. (a) With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of such Holders delivered to the Company and the Trustee, the Company, by a Board Resolution, and the Trustee 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 modifying in any manner the rights of the Holders of Securities of such series under this Indenture; -66- provided, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of each series affected thereby, (i) change the Stated Maturity of the principal of, any premium or any installment of interest (including any Additional Interest) on or any Additional Amounts with respect to any Security, or reduce the principal amount thereof or the rate of interest thereon or any Additional Amounts with respect to or any premium payable upon the redemption thereof or otherwise, or reduce the amount of principal of a Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, modify the calculation of the rate of interest on any Security or change the date on which any Security may be redeemed, or change the Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon or any Additional Amount with respect thereto 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 (ii) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series, the consent of whose Holders is required to enter into any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with any provisions of this Indenture or any default hereunder and their consequences provided for in this Indenture, or (iii) modify any of the provisions of this Section, Section 5.13 or Section 10.9, 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 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 and Section 10.9, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.1(f), or (iv) modify any of the provisions of this Indenture relating to the subordination of the Securities in a manner that would adversely affect the interests of any Holder of Securities of that series; provided, that, in the case of the Securities of a series initially issued to a Trust, so long as any of the corresponding series of Preferred Securities issued by such Trust remains outstanding, (x) no such amendment shall be made that adversely affects the holders of such Preferred Securities in any material respect, and no termination of this Indenture shall occur, and no waiver of any Event of Default or compliance with any covenant under this Indenture shall be effective, without the prior consent of the holders of at least a majority of the aggregate Liquidation Amount (as defined in the related Trust Agreement) of such Preferred Securities then outstanding unless and until the principal -67- of and any premium on the Securities of such series and all accrued and (subject to Section 3.12) unpaid interest (including any Additional Interest) thereon and all Additional Amounts with respect thereto have been paid in full and (y) no amendment shall be made to Section 5.8 of this Indenture that would impair the rights of the holders of Preferred Securities issued by any Trust provided therein without the prior consent of the holders of each such Preferred Security then outstanding unless and until the principal of and any premium on the Securities of such series and all accrued and (subject to Section 3.12) unpaid interest (including any Additional Interest) thereon have been paid in full. (b) A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Securities or any corresponding series of Preferred Securities of a Trust that holds the Securities of any series, or that modifies the rights of the Holders of Securities of such series or holders of such Preferred Securities of such corresponding 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 or holders of Preferred Securities of any other such corresponding 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. 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 shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties, responsibilities or immunities 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. -68- 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. Section 9.6. Reference in Securities to Supplemental Indentures. Securities of any series 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 Company, to any such supplemental indenture may be prepared and executed by the Company and 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 The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest (including any Additional Interest) on and Additional Amounts with respect to the Securities of that series in accordance with the terms of such Securities and this Indenture. 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 initially appoints the Trustee, acting through its Corporate Trust Office, as its agent for such purposes. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain such 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 of such -69- purposes, and may from time to time rescind such designations; provided, 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 office or agency. Section 10.3. Money for Security 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, any premium or interest (including any Additional Interest) on and any Additional Amounts with respect to any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, any premium or interest (including any Additional Interest) and any Additional Amounts 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 in writing 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 10:00 a.m., New York City time, on each due date of the principal of, any premium or interest (including any Additional Interest) on or any Additional Amounts with respect to any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing 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 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 (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. (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. -70- (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, any premium or interest (including any Additional Interest) on and any Additional Amounts with respect to any Security and remaining unclaimed for two years after such principal, any premium or interest or any such Additional Amount has become due and payable shall (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be paid on Company Request to the Company, or (if then held by the Company) shall (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of 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; provided, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company. Section 10.4. Statement by Officers as to Compliance. The Company shall 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 covering the preceding fiscal year, stating whether or not to the knowledge of the signers thereof the Company is in default in the performance or observance with any of the terms, provisions, covenants and conditions of this Indenture (without regard to any grace period or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. Section 10.5. Additional Amounts (a) All payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which the Company is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision -71- thereof). If any withholding or deduction at source is required, the Company shall, subject to the limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable (the "Additional Amounts"); provided, that the Company shall not be required to make payment of such Additional Amounts for or on account of: (i) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such Holder or the beneficial owner of such Security (other than a Trust): (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof of therein or otherwise had some connection with the relevant taxing jurisdiction or any political subdivision thereof or therein other than by reason of the mere ownership of, or receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or any political subdivision thereof or therein, unless such Security could not have been presented for payment elsewhere; or (c) presented such Security more than 30 days after the date on which the payment in respect of such Security first became due and payable, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts if it had presented such Security for payment on any day within such period of 30 days; (ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or (iii) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of such Security (other than a Trust) to comply, within 90 days, with any reasonable request by the Company addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; nor shall Additional Amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Security to any Holder where the beneficial owner -72- of such Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or partner of such partnership that would not have been entitled to such Additional Amounts had it been the Holder of the Security. (b) Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made. (c) Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series, at least 10 days prior to the first Interest Payment Date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below- mentioned Officer's Certificate, the Company shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section. If any such withholding shall be required, then such Officer's Certificate shall specify by jurisdiction in which the Holders are resident for tax purposes the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer's Certificate furnished pursuant to this Section. -73- Section 10.6. Original Issue Discount. For each year during which any Discount Securities are Outstanding, the Company shall furnish to each Paying Agent in a timely fashion such information as may be reasonably requested by each Paying Agent in order that each Paying Agent may prepare the information which it is required to report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such information shall include the amount of original issue discount includible in income for each $25 of principal amount at Stated Maturity of outstanding Securities during such year. Section 10.7. Additional Tax Sums. In the case of the Securities of a series initially issued to a Trust, so long as no Event of Default has occurred and is continuing and except as otherwise specified as contemplated by Section 2.1 or Section 3.1, if (a) a Trust is the Holder of all of the Outstanding Securities of such series and (b) a Tax Event described in clause (i) or (iii) in the definition of Tax Event in Section 1.1 has occurred and is continuing in respect of such Trust, the Company shall pay to such Trust (and its permitted successors or assigns under the related Trust Agreement) for so long as such Trust (or its permitted successor or assignee) is the registered holder of the Outstanding Securities of such series, such additional amounts as may be necessary in order that the amount of Distributions then due and payable by such Trust on the related Preferred Securities and Common Securities that at any time remain outstanding in accordance with the terms thereof shall not be reduced as a result of any Additional Taxes arising from such Tax Event (the "Additional Tax Sums"). Whenever in this Indenture or the Securities there is a reference in any context to the payment of principal of or interest on the Securities, such mention shall be deemed to include mention of the payments of the Additional Tax Sums provided for in this Section to the extent that, in such context, Additional Tax Sums are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Tax Sums (if applicable) in any provisions hereof shall not be construed as excluding Additional Tax Sums in those provisions hereof where such express mention is not made; provided, that the deferral of the payment of interest pursuant to Section 3.12 on the Securities shall not defer the payment of any Additional Tax Sums that may be due and payable. Section 10.8. Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the capital stock of the Company or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (A) repurchases, redemptions or other acquisitions of shares of -74- capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the capital stock of the Company (or any capital stock of a Subsidiary of the Company), for any class or series of the capital stock of the Company or of any class or series of the indebtedness of the Company for any class or series of the capital stock of the Company, (C) the purchase of fractional interests in shares of the capital stock of the Company pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchange, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock), if at such time the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. (b) The Company also covenants with each Holder of Securities of a series initially issued to a Trust (i) to hold, directly or indirectly, 100% of the Common Securities of such Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily terminate, wind-up or liquidate such Trust other than (A) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of such Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of such Trust Agreement, to cause such Trust to continue not to be taxable as a corporation for United States Federal income tax purposes. Section 10.9. Waiver of Certain Covenants. Subject to the rights of holders of Preferred Securities specified in Section 9.2, if any, and except as otherwise specified as contemplated by Section 3.1 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any covenant in Section 10.8 or provided pursuant to Section 3.1 or Section 9.1(a) or (c) for the benefit of the holders of such series, if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant, but no such waiver shall extend to or affect such covenant except -75- to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company in respect of any such covenant shall remain in full force and effect. ARTICLE XI Redemption of Securities Section 11.1. Applicability of Article. Securities of any series that 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 such Securities) 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 or in another manner specified as contemplated by Section 3.1 for such Securities. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing and, in the case of Securities of a series held by a Trust, the Property Trustee under the related Trust Agreement, of the Redemption Date and of the principal amount of Securities of the applicable series to be redeemed; provided, that in the case of any series of Securities initially issued to a Trust, for so long as such Securities are held by such Trust, such notice shall be given not less than 45 nor more than 75 days prior to such Redemption Date (unless a shorter notice shall be satisfactory to the Property Trustee under the related Trust Agreement). In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company that is subject to a condition specified 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 or condition. Section 11.3. Selection of Securities to be Redeemed. (a) If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided, that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. -76- (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. 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 Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed. (c) The provisions of paragraphs (a) and (b) of this Section shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. Section 11.4. Notice of Redemption. (a) Notice of redemption shall be given not less than 30 days nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, provided, that in the case of any series of Securities initially issued to a Trust, for so long as such Securities are held by such Trust, such notice shall be given not less than 45 nor more than 75 days prior to such Redemption Date (unless a shorter notice shall be satisfactory to the Property Trustee under the related Trust Agreement). (b) With respect to Securities of each series to be redeemed, each notice of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price, as calculated by the Company, together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the day provided by the terms of such Securities (and if an estimate is provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated); (iii) if less than all Outstanding Securities of such series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed; -77- (iv) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that any interest (including any Additional Interest) thereon shall cease to accrue on and after said date; (v) the place or places where such Securities are to be surrendered for payment of the Redemption Price; (vi) that the redemption is for a sinking fund, if such is the case; and (vii) such other provisions as may be required in respect of the terms of such Securities. (c) Unless otherwise specified with respect to any Securities in accordance with Section 3.1, with respect to any redemption of Securities at the election of the Company, unless, upon the giving of notice of such redemption, Defeasance shall have been effected with respect to such Securities pursuant to Section 13.2, such notice may state that such redemption shall be conditional upon the receipt by the Trustee or the Paying Agent for such Securities, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of, any premium and interest (including any Additional Interest) on and any Additional Amounts with respect to such Securities and that if such money shall not have been so received such notice shall be of no force or effect and the Company shall not be required to redeem such Securities. In the event such notice of redemption contains such a condition and such money is not so received, the redemption shall not be made and within a reasonable time thereafter notice shall be given, in the same manner in which the notice of redemption was given, that such money was not so received and such redemption was not required to be made, and the Trustee or Paying Agent for the Securities otherwise to have been redeemed shall promptly return to the Holders thereof any of such Securities that had been surrendered for payment upon such redemption. (d) 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 and, subject to paragraph (c) of this Section, shall be irrevocable. The notice if mailed in the manner provided above shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security. -78- Section 11.5. Deposit of Redemption Price. Prior to 10:00 a.m., New York City time, on any Redemption Date, the Company will deposit with the Trustee or with one or more Paying Agents (or if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and any accrued interest (including any Additional Interest) on all the Securities (or portions thereof) that are to be redeemed on that date. Section 11.6. Payment of Securities Called for Redemption. (a) Except as provided in Section 11.4(c), after notice of redemption has been given, the Securities to be redeemed shall become due and payable on the Redemption Date at the place or places stated in such notice at the Redemption Price, together with accrued interest (including any Additional Interest) to the Redemption Date. Upon surrender of such Securities at a Place of Payment specified in such notice, such Securities shall be paid and redeemed by the Company at the Redemption Price, together with accrued interest (including any Additional Interest) to the Redemption Date; provided, that, unless otherwise specified as contemplated by Section 3.1, installments of interest (including any Additional Interest) whose Stated Maturity is on or prior to the Redemption Date will 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 3.8. (b) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal of and any premium on and Additional Amounts with respect to such Security shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. Section 11.7. Securities Redeemed in Part. Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented and having the same Original Issue Date, Stated Maturity and terms. Section 11.8. Right of Redemption of Securities Initially Issued to a Trust. (a) In the case of the Securities of a series initially issued to a Trust, except as otherwise specified as contemplated by Section 3.1, the Company, at its option, may redeem such Securities (i) on or after the date specified in such Security, in whole at any time or in part from time to time, or (ii) upon the occurrence and during the continuation of a Tax Event or an Investment Company -79- Event, at any time within 90 days following the occurrence and during the continuation of such Tax Event or Investment Company Event, in whole (but not in part), in each case at a Redemption Price specified in such Security, together with accrued interest (including any Additional Interest) to the Redemption Date. (b) If less than all the Securities of any such series are to be redeemed, the aggregate principal amount of such Securities remaining Outstanding after giving effect to such redemption shall be sufficient to satisfy any provisions of the Trust Agreement related to the Trust to which such Securities were issued, including any requirement in such Trust Agreement as to the minimum Liquidation Amount (as defined in such Trust Agreement) of Preferred Securities that may be held by a holder of Preferred Securities thereunder. ARTICLE XII Sinking Funds Section 12.1. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.1 for such Securities. The minimum amount of any sinking fund payment provided for by the terms of any Securities of any series is herein referred to as a "mandatory sinking fund payment", and any sinking fund payment in excess of such minimum amount that is permitted to be made by the terms of such Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of any 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 such Securities. Section 12.2. Satisfaction of Sinking Fund Payments with Securities. In lieu of making all or any part of a mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option, at any time no more than 16 months and no less than 60 days prior to the date on which such sinking fund payment is due, deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired by the Company, except Securities of such series that have been redeemed through the application of mandatory or optional sinking fund payments pursuant to the terms of the Securities of such series, accompanied by a Company Order instructing the Trustee to credit such obligations and stating that the Securities of such series were originally issued by the Company by way of bona fide sale or other negotiation for value; provided, that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the -80- Redemption Price for such Securities, as specified in the Securities so to be redeemed, 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. (a) Not less than 60 days prior 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 such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash in the currency in which the Securities of such series are payable (except as provided pursuant to Section 3.1) and the portion thereof, if any, that is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and stating the basis for such credit and that such Securities have not been previously so credited, and will also deliver to the Trustee any Securities to be so delivered. Such Officers' Certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the succeeding sinking fund payment date. In the case of the failure of the Company to deliver such Officers' Certificate (or, as required by this Indenture, the Securities specified in such Officers' Certificate) by the due date therefor, the sinking fund payment due on the succeeding sinking fund payment date for such series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the Securities of such series subject to a mandatory sinking fund payment without the right to deliver or credit securities as provided in Section 12.2 and without the right to make the optional sinking fund payment with respect to such series at such time. (b) Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made with respect to the Securities of any particular series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date immediately following the date of such payment) to the redemption of Securities of such series at the Redemption Price specified in such Securities with respect to the sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee (or, if the Company is acting as its own Paying Agent segregated and held in trust by the Company as provided in Section 10.3) for such series and together with such payment (or such amount so segregated) shall be applied in accordance with the provisions of this Section 12.3. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee (or if the Company is acting as its own Paying Agent, segregated and held in trust as provided in Section 10.3) on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities of such series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity. The Trustee shall select -81- 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 Section 11.6. On or before each sinking fund payment date, the Company shall pay to the Trustee (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) in cash a sum in the currency in which Securities of such series are payable (except as provided pursuant to Section 3.1) equal to the principal and any premium, interest (including any Additional Interest) accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 12.3 and any Additional Amounts with respect thereto. (c) Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to the Securities of such series, except that if the notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee or the Company (if the Company is then acting as its own Paying Agent) shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company) for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of the Securities of such series; provided, that in case such default or Event of Default shall have been cured or waived herein, such moneys shall thereafter be applied on the next sinking fund payment date for the Securities of such series on which such moneys may be applied pursuant to the provisions of this Section 12.3. ARTICLE XIII Defeasance and Covenant Defeasance Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option at any time, to have Section 13.2 or Section 13.3 applied to any Securities or any series of Securities designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2 or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon compliance with the conditions set forth below in this Article. -82- Section 13.2. Defeasance and Discharge. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities 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 proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set forth in such Section, payments in respect of the principal of, any premium and interest (including Additional Interest) on and any Additional Amounts with respect to such Securities when payments are due, (b) the Company's obligations with respect to such Securities under Sections 3.6, 3.7, 10.2 and 10.3, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) the provisions of this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.3 applied to such Securities. Section 13.3. Covenant Defeasance. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (a) the Company shall be released from its obligations under Sections 8.1 and 10.8 and any covenants provided pursuant to Section 3.1(n) or Section 9.1(a) or (c) for the benefit of the Holders of such Securities and (b) the occurrence of any event specified in Section 5.1(d) (with respect to any of Section 8.1 or 10.8 and any covenants provided pursuant to Section 3.1(n) or Section 9.1(a) or (c)), Section 5.1(e), (f) or (i) or Section 9.1(d) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that, with respect to such Securities, 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, 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. Notwithstanding anything herein to the contrary, no Covenant Defeasance shall release any successor Person referred to in Article VIII from its obligations to assume the obligations of the Company under Section 6.7 as a condition to the consummation of any transaction contemplated by Section 8.1. -83- Section 13.4. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of Securities, as the case may be: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9 and agrees to comply with the provisions of this Article 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, (i) money in an amount or (ii) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount or (iii) a combination thereof, in each case 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 any such other qualifying trustee) to pay and discharge, the principal of, any premium and interest on and any Additional Amounts with respect to such Securities on the respective Stated Maturities or Redemption Dates in accordance with the terms of this Indenture and such Securities. (b) In the event of an election to have Section 13.2 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. (c) In the event of an election to have Section 13.3 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. -84- (d) The Company shall have delivered to the Trustee an Officers' Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. (e) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Section 5.1 (g) and (h), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act). (g) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder. (h) If the money and/or Government Obligations deposited in trust pursuant to this Section are sufficient to pay and discharge such Securities on a Redemption Date, then at or prior to the time of such deposit, either notice of such redemption shall have been given in accordance with Section 11.4 or the Company shall have irrevocably instructed the Trustee to give such notice of redemption and arrangements satisfactory to the Trustee for the giving of such notice by the Trustee in the name, and at the expense, of the Company shall have been made. (i) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions. (a) Subject to the provisions of paragraph (e) of Section 10.3, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.6, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 13.4 in respect of any Securities 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 such Paying Agent (including the -85- 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 principal and any premium, interest and Additional Amounts, but money so held in trust 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 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 Outstanding Securities. Moneys held by the Trustee under this Section shall not be subject to the claims of the holders of Senior Debt under Article XIV. (c) Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon a Company Request any money or Government Obligations held by it as provided in Section 13.4 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities. Section 13.6. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 13.2 or 13.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.5 with respect to such Securities in accordance with this Article; provided, that if the Company makes any payment of principal of, any premium or interest on or any Additional Amounts with respect to any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust. Section 13.7. Qualifying Trustee. Any trustee appointed pursuant to Section 13.4 for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the -86- related Defeasance or Covenant Defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee. ARTICLE XIV Subordination of Securities Section 14.1. Securities Subordinate to Senior Debt. The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the payment of the principal of, any premium and interest (including any Additional Interest) on and any Additional Amounts with respect to each and all of the Securities of each and every series are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Debt. Section 14.2. No Payment When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc. (a) If the Company shall default in the payment of any principal of or any premium or interest on any Senior Debt when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Debt or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of, any premium or interest (including any Additional Interest) on or any Additional Amounts with respect to any of the Securities, or in respect of any redemption, repayment, retirement, purchase or other acquisition of any of the Securities. (b) In the event of any Proceeding with respect to the Company, all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other company provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior -87- Debt (including any interest thereon accruing after the commencement of any Proceeding) shall have been paid in full. (c) In the event of any Proceeding, after payment in full of all sums owing with respect to Senior Debt, the Holders of the Securities, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of, any premium and interest on and any Additional Amounts with respect to the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other company provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment) shall be received by the Trustee or any Holder in contravention of any of the terms hereof and before all Senior Debt shall have been paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably authorized to endorse or assign the same. (d) The Trustee and the Holders, at the expense of the Company, shall take such reasonable action (including the delivery of this Indenture to an agent for the holders of Senior Debt or consent to the filing of a financing statement with respect hereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions. (e) The provisions of this Section 14.2 shall not impair any rights, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. (f) The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or ranking junior to the Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Securities or ranking junior to the Securities. -88- Section 14.3. Payment Permitted If No Default. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company, at any time, except during the pendency of the conditions described in paragraph (a) of Section 14.2 or of any Proceeding referred to in Section 14.2, from making payments at any time of principal of, any premium or interest (including any Additional Interest) on and any Additional Amounts with respect to the Securities or (b) the application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal of, any premium or interest (including any Additional Interest) on and any Additional Amounts with respect to the Securities or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in accordance with Section 14.8) that such payment would have been prohibited by the provisions of this Article, except as provided in Section 14.8. Section 14.4. Subrogation to Rights of Holders of Senior Debt. Subject to the payment in full of all amounts due or to become due on all Senior Debt, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Debt pursuant to the provisions of this Article (equally and ratably with the holders of all indebtedness of the Company that by its express terms is subordinated to Senior Debt of the Company to substantially the same extent as the Securities are subordinated to the Senior Debt and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Senior Debt) to the rights of the holders of such Senior Debt to receive payments and distributions of cash, property and securities applicable to the Senior Debt until the principal of, any premium and interest (including any Additional Interest) on and any Additional Amounts with respect to the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments made pursuant to the provisions of this Article to the holders of Senior Debt by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior Debt, and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Debt. Section 14.5. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Debt on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the Holders of the Securities, the obligations of the Company, which are absolute and unconditional, to pay to the Holders of the Securities the principal of, any premium and interest (including any Additional Interest) on and any -89- Additional Amounts with respect to the Securities as and when the same shall become due and payable in accordance with their terms, (b) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than their rights in relation to the holders of Senior Debt or (c) prevent the Trustee or the Holder of any Security (or to the extent expressly provided herein, the holder of any Preferred Security) from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, including filing and voting claims in any Proceeding, subject to the rights, if any, under this Article of the holders of Senior Debt to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. Section 14.6. Trustee to Effectuate Subordination. Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in this Article and appoints the Trustee his or her attorney-in- fact for any and all such purposes. Section 14.7. No Waiver of Subordination Provisions. (a) No right of any present or future holder of any Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise charged with. (b) Without in any way limiting the generality of the paragraph (a) of this Section, the holders of Senior Debt may, at any time and from to time, without the consent of or notice to the Trustee or the Holders of the Securities of any series, without incurring responsibility to such Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of such Holders of the Securities to the holders of Senior Debt, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt, or otherwise amend or supplement in any manner Senior Debt or any instrument evidencing the same or any agreement under which Senior Debt is outstanding, (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt, (iii) release any Person liable in any manner for the collection of Senior Debt and (iv) exercise or refrain from exercising any rights against the Company and any other Person. -90- Section 14.8. Notice to Trustee. (a) The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company that would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Company or a holder of Senior Debt or from any trustee, agent or representative therefor; provided, that if the Trustee shall not have received the notice provided for in this Section at least two Business Days prior to the date upon which by the terms hereof any monies may become payable for any purpose (including, the payment of the principal of, any premium or interest (including any Additional Interest) on and any Additional Amounts with respect to any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. (b) The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or herself to be a holder of Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 14.9. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. -91- Section 14.10. Trustee Not Fiduciary for Holders of Senior Debt. The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article or otherwise. Section 14.11. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Debt that may at any time be held by it, to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Section 14.12. Article Applicable to Paying Agents. If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee, provided, that Sections 14.8 and 14.11 shall not apply to the Company or any Affiliate of the Company if the Company or such Affiliate acts as Paying Agent. -92- 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. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written. MUTUAL RISK MANAGEMENT LTD., as Issuer By: ______________________________________ Name: Title: Attest: ___________________________ THE CHASE MANHATTAN BANK By: ______________________________________ Name: Title: -93- State Of New York ) ) ss.: County Of New York ) On the .... day of ..........., ...., before me personally came ..........................., to me known, who, being by me duly sworn, did depose and say that he is .................... of Mutual Risk Management Ltd., one of the corporations described in and which executed the foregoing instrument; and that he signed his name thereto by like authority. ......................... State Of New York ) ) ss.: County Of New York ) On the .... day of ..........., ...., before me personally came ..........................., to me known, who, being by me duly sworn, did depose and say that he is .................... of The Chase Manhattan Bank, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. ......................... -94- EX-4.4 6 FORM OF INDENTURE JUNIOR SUB NOTES MUTUAL GROUP Exhibit 4.4 ================================================================================ MUTUAL GROUP, LTD., Issuer MUTUAL RISK MANAGEMENT LTD., Guarantor to THE CHASE MANHATTAN BANK, as Trustee --------------------------- JUNIOR SUBORDINATED INDENTURE Dated as of ________ __, 2000 --------------------------- ================================================================================ TABLE OF CONTENTS
Page ARTICLE I Definitions and Other Provisions of General Application Section 1.1. Definitions............................................................................................. 2 Section 1.2. Compliance Certificates and Opinions.................................................................... 11 Section 1.3. Forms of Documents Delivered to Trustee................................................................. 12 Section 1.4. Acts of Holders; Record Dates........................................................................... 13 Section 1.5. Notices, Etc. to Trustee, Company and the Guarantor..................................................... 14 Section 1.6. Notice to Holders; Waiver............................................................................... 15 Section 1.7. Conflict with Trust Indenture Act....................................................................... 15 Section 1.8. Effect of Headings and Table of Contents................................................................ 15 Section 1.9. Successors and Assigns.................................................................................. 15 Section 1.10. Separability Clause.................................................................................... 16 Section 1.11. Benefits of Indenture.................................................................................. 16 Section 1.12. Governing Law.......................................................................................... 16 Section 1.13. Non-Business Days...................................................................................... 16 Section 1.14. Indenture and Securities Solely Corporate Obligations.................................................. 16 Section 1.15. Submission to Jurisdiction............................................................................. 17 ARTICLE II Security Forms Section 2.1. Forms Generally........................................................................................ 17 Section 2.2. Form of Face of Security............................................................................... 17 Section 2.3. Form of Reverse of Security............................................................................ 20 Section 2.4. Additional Provisions Required in Global Security...................................................... 23 Section 2.5. Additional Provisions Required in Guaranteed Security.................................................. 23 Section 2.6. Form of Trustee's Certificate of Authentication........................................................ 23 ARTICLE III The Securities Section 3.1. Title and Terms........................................................................................ 24 Section 3.2. Denominations.......................................................................................... 27 Section 3.3. Execution, Authentication, Delivery and Dating......................................................... 27 Section 3.4. Temporary Securities................................................................................... 28 Section 3.5. Global Securities...................................................................................... 29 Section 3.6. Registration, Transfer and Exchange.................................................................... 30
-i- Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities....................................................... 31 Section 3.8. Payment of Interest and Additional Interest; Interest Rights Preserved................................. 32 Section 3.9. Persons Deemed Owners.................................................................................. 33 Section 3.10. Cancellation.......................................................................................... 33 Section 3.11. Computation of Interest............................................................................... 34 Section 3.12. Deferrals of Interest Payment Dates................................................................... 34 Section 3.13. Right of Set-Off...................................................................................... 35 Section 3.14. Agreed Tax Treatment.................................................................................. 35 Section 3.15. Shortening and Extending Stated Maturity.............................................................. 35 Section 3.16. CUSIP Numbers......................................................................................... 36 ARTICLE IV Satisfaction and Discharge Section 4.1. Satisfaction and Discharge of Indenture................................................................ 36 Section 4.2. Application of Trust Money............................................................................. 37 ARTICLE V Remedies Section 5.1. Events of Default...................................................................................... 38 Section 5.2. Acceleration of Maturity; Rescission and Annulment..................................................... 40 Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee........................................ 41 Section 5.4. Trustee May File Proofs of Claim....................................................................... 42 Section 5.5. Trustee May Enforce Claims Without Possession of Securities............................................ 42 Section 5.6. Application of Money Collected......................................................................... 43 Section 5.7. Limitation on Suits.................................................................................... 43 Section 5.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Tax Sums; Direct Action by Holders of Preferred Securities.............................. 44 Section 5.9. Restoration of Rights and Remedies.................................................................... 44 Section 5.10. Rights and Remedies Cumulative........................................................................ 44 Section 5.11. Delay or Omission Not Waiver.......................................................................... 45 Section 5.12. Control by Holders.................................................................................... 45 Section 5.13. Waiver of Past Defaults............................................................................... 45 Section 5.14. Undertaking for Costs................................................................................. 46 Section 5.15. Waiver of Usury, Stay or Extension Laws............................................................... 46
-ii- ARTICLE VI The Trustee Section 6.1. Certain Duties and Responsibilities.................................................................... 46 Section 6.2. Notice of Defaults..................................................................................... 47 Section 6.3. Certain Rights of Trustee.............................................................................. 47 Section 6.4. Not Responsible for Recitals or Issuance of Securities................................................. 48 Section 6.5. May Hold Securities.................................................................................... 48 Section 6.6. Money Held in Trust.................................................................................... 49 Section 6.7. Compensation and Reimbursement......................................................................... 49 Section 6.8. Conflicting Interests.................................................................................. 50 Section 6.9. Corporate Trustee Required; Eligibility................................................................ 50 Section 6.10. Resignation and Removal; Appointment of Successor..................................................... 50 Section 6.11. Acceptance of Appointment by Successor................................................................ 51 Section 6.12. Merger, Conversion, Consolidation or Succession to Business........................................... 52 Section 6.13. Preferential Collection of Claims Against Company..................................................... 53 Section 6.14. Appointment of Authenticating Agent................................................................... 53 ARTICLE VII Holder's Lists and Reports by Trustee and Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.............................................. 54 Section 7.2. Preservation of Information; Communications to Holders................................................. 55 Section 7.3. Reports by Trustee..................................................................................... 55 Section 7.4. Reports by Company..................................................................................... 55 ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms................................................... 56 Section 8.2. Successor Company Substituted.......................................................................... 56 Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms................................................. 57 Section 8.4. Successor Guarantor Substituted........................................................................ 58
-iii- ARTICLE IX Supplemental Indentures Section 9.1. Supplemental Indentures Without Consent of Holders..................................................... 58 Section 9.2. Supplemental Indentures With Consent of Holders........................................................ 59 Section 9.3. Execution of Supplemental Indentures................................................................... 61 Section 9.4. Effect of Supplemental Indentures...................................................................... 61 Section 9.5. Conformity with Trust Indenture Act.................................................................... 61 Section 9.6. Reference in Securities to Supplemental Indentures..................................................... 61 ARTICLE X covenants Section 10.1. Payment of Principal, Premium and Interest ........................................................... 62 Section 10.2. Maintenance of Office or Agency....................................................................... 62 Section 10.3. Money for Security Payments to be Held in Trust....................................................... 62 Section 10.4. Statement by Officers as to Compliance................................................................ 63 Section 10.5. Statement by Guarantor's Officers as to Compliance.................................................... 64 Section 10.6. Original Issue Discount............................................................................... 64 Section 10.7. Additional Tax Sums................................................................................... 64 Section 10.8. Additional Covenants.................................................................................. 64 Section 10.9. Waiver of Certain Covenants........................................................................... 65 ARTICLE XI Redemption of securities Section 11.1. Applicability of Article.............................................................................. 66 Section 11.2. Election to Redeem; Notice to Trustee................................................................. 66 Section 11.3. Selection of Securities to be Redeemed................................................................ 66 Section 11.4. Notice of Redemption.................................................................................. 67 Section 11.5. Deposit of Redemption Price........................................................................... 68 Section 11.6. Payment of Securities Called for Redemption........................................................... 68 Section 11.7. Securities Redeemed in Part........................................................................... 69 Section 11.8. Right of Redemption of Securities Initially Issued to an Trust........................................ 69
-iv- ARTICLE XII Sinking Funds Section 12.1. Applicability of Article.............................................................................. 69 Section 12.2. Satisfaction of Sinking Fund Payments with Securities................................................. 70 Section 12.3. Redemption of Securities for Sinking Fund............................................................. 70 ARTICLE XIII Defeasance and Covenant Defeasance Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance........................................ 71 Section 13.2. Defeasance and Discharge............................................................................ 72 Section 13.3. Covenant Defeasance................................................................................. 72 Section 13.4. Conditions to Defeasance or Covenant Defeasance..................................................... 73 Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions........................................................................ 74 Section 13.6. Reinstatement....................................................................................... 75 Section 13.7. Qualifying Trustee.................................................................................. 75 ARTICLE XIV Subordination of Securities Section 14.1. Securities Subordinate Company to Senior Debt........................................................ 75 Section 14.2. No Payment When Company Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc............................................................................. 75 Section 14.3. Payment Permitted If No Default...................................................................... 77 Section 14.4. Subrogation to Rights of Holders of Company Senior Debt.............................................. 77 Section 14.5. Provisions Solely to Define Relative Rights.......................................................... 78 Section 14.6. Trustee to Effectuate Subordination.................................................................. 78 Section 14.7. No Waiver of Subordination Provisions................................................................ 78 Section 14.8. Notice to Trustee.................................................................................... 79 Section 14.9. Reliance on Judicial Order or Certificate of Liquidating Agent....................................... 79 Section 14.10. Trustee Not Fiduciary for Holders of Company Senior Debt............................................. 79 Section 14.11. Rights of Trustee as Holder of Company Senior Debt; Preservation of Trustee's Rights............................................................................................ 80 Section 14.12. Article Applicable to Paying Agents.................................................................. 80
-v- ARTICLE XV Guarantee and Indemnity Section 15.1. Applicability of Article............................................................................. 80 Section 15.2. The Guarantee........................................................................................ 80 Section 15.3. Net Payments......................................................................................... 80 Section 15.4 Guarantee Unconditional, etc......................................................................... 82 Section 15.5. Execution of Guarantee............................................................................... 83 Section 15.6. Form of Guarantee.................................................................................... 84 Section 15.7. Subrogation.......................................................................................... 87 Section 15.8. Indemnity............................................................................................ 87 ARTICLE XVI Subordination of Guarantee Section 16.1. Guarantee Subordinate to Guarantor Senior Debt....................................................... 87 Section 16.2. No Payment When Guarantor Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc............................................................................. 87 Section 16.3. Payment Permitted If No Default...................................................................... 89 Section 16.4. Subrogation to Rights of Holders of Guarantor Senior Debt............................................ 89 Section 16.5. Provisions Solely to Define Relative Rights.......................................................... 89 Section 16.6. Trustee to Effectuate Subordination.................................................................. 90 Section 16.7. No Waiver of Subordination Provisions................................................................ 90 Section 16.8. Notice to Trustee.................................................................................... 90 Section 16.9. Reliance on Judicial Order or Certificate of Liquidating Agent....................................... 91 Section 16.10. Trustee Not Fiduciary for Holders of Guarantor Senior Debt........................................... 91 Section 16.11. Rights of Trustee as Holder of Guarantor Senior Debt; Preservation of Trustee's Rights............................................................................................ 91 Section 16.12. Article Applicable to Paying Agents.................................................................. 92
-vi- .............................................................. Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section (S) 310(a)(1) ........................................................ 6.9 (a)(2) ........................................................ 6.9 (a)(3) ........................................................ Not Applicable (a)(4) ........................................................ Not Applicable (b) ........................................................ 6.8 6.10 (S) 311(a) ........................................................ 6.13 (b) ........................................................ 6.13 (S) 312(a) ........................................................ 7.1 7.2 (b) ........................................................ 7.2 (c) ........................................................ 7.2 (S) 313(a) ........................................................ 7.3 (b) ........................................................ 7.3 (c) ........................................................ 7.3 (d) ........................................................ 7.3 (S) 314(a) ........................................................ 7.4 (a)(4) ........................................................ 1.2 10.4 10.5 (b) ........................................................ Not Applicable (c)(1) ........................................................ 1.2 (c)(2) ........................................................ 1.2 (c)(3) ........................................................ Not Applicable (d) ........................................................ Not Applicable (e) ........................................................ 10.2 (S) 315(a) ........................................................ 6.1 (b) ........................................................ 6.2 (c) ........................................................ 6.1 (d) ........................................................ 6.1 (e) ........................................................ 5.14 (S) 316(a) ........................................................ 5.12 (a)(1) (A) ........................................................ 5.2 5.12 (a)(1) (B) ........................................................ 5.13 (a)(2) ........................................................ Not Applicable (b) ........................................................ 5.8 (c) ........................................................ 1.4 (S) 317(a)(1) ........................................................ 5.3 (a)(2) ........................................................ 5.4 (b) ........................................................ 10.3 (S) 318(a) ........................................................ 10.7 Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
-vii- JUNIOR SUBORDINATED INDENTURE, dated as of ________ __, 2000, among MUTUAL GROUP LTD., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), having its principal office at One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, MUTUAL RISK MANAGEMENT LTD., a corporation duly organized and existing under the laws of Bermuda (herein called the "Guarantor"), having its principal office at 44 Church Street, Hamilton HM12 Bermuda, and THE CHASE MANHATTAN BANK, a New York banking corporation, as Trustee (the "Trustee"). Recitals Whereas, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its junior subordinated debt securities in series (hereinafter called the "Securities") of substantially the tenor hereinafter provided, including Securities issued to evidence loans made to the Company of the proceeds from the issuance from time to time by one or more business trusts (each a "Trust") of undivided preferred beneficial interests in the assets of such Trusts (the "Preferred Securities") and undivided common beneficial interests in the assets of such Trusts (the "Common Securities" and, collectively with the Preferred Securities, the "Trust Securities"), unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided; Whereas, all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. Whereas, for value received, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Guarantee and the indemnity provided for herein. Whereas, all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done; and Whereas, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions. Now Therefore, This Indenture Witnesseth: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, 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 meanings assigned to them in this Article, and include the plural as well as the singular; (2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation"; (4) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (5) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; (6) whenever the context may require, any gender shall be deemed to include the others; (7) the words "hereby," "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 (8) the word "or" is always used inclusively (for example the phrase "A or B" means "A or B or both," not "either A or B but not both"). "Act" when used with respect to any Holder has the meaning specified in Section 1.4. "Additional Amounts" has the meaning specified in Section 15.3. "Additional Interest" means the interest, if any, that shall accrue on any interest on the Securities of any series the payment of which has not been made on the applicable Interest Payment Date in accordance with Section 3.12, and which shall accrue at the rate per annum specified or determined as specified in such Security. "Additional Tax Sums" has the meaning specified in Section 10.7. "Additional Taxes" means, in the case of Securities of a series initially issued to a Trust, taxes, duties or other governmental charges imposed on the Trust as a result of a Tax Event (which, for the sake of clarity, does not include amounts required to be deducted or withheld by the Trust from payments made by the Trust to or for the benefit of the Holder of, or any Person that acquires a beneficial interest in, the Securities). -2- "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; provided, however, that an Affiliate of the Company or the Guarantor shall not be deemed to include any Trust to which Securities and the Guarantee in respect thereof have been issued. 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. "Agent Member" means any member of, or participant in, the Depositary. "Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series. "Board of Directors" means the board of directors of the Company or any duly authorized committee of that 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 any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee, or, with respect to the Securities of a series initially issued to a Trust for so long as such Securities are held by such Trust, the "Corporate Trust Office" (as defined in the related Trust Agreement) of the Property Trustee under the related Trust Agreement, is closed for business. "Calculation Agent" with respect to Securities of any series that bear interest determined by reference to a Floating Rate Index, means the Person designated as Calculation Agent by the Company pursuant to Section 3.1 with respect to such series. "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 instrument 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. "Common Securities" has the meaning specified in the first recital of this Indenture. "Common Shares" means the common shares, par value $0.01 per share, of the Company. -3- "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Company Senior Debt" means the principal of, any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not such claim for post-petition interest is allowed in such proceeding) and other amounts in respect of all Debt of the Company, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior in right of payment to the Securities or to other Debt that is pari passu with, or subordinated to, the Securities, provided, that Company Senior Debt shall not be deemed to include (a) any Securities, (b) any Debt of the Company that, when incurred and without respect to any election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the Company, (c) any Debt of the Company to any of its Subsidiaries, (d) any Debt of the Company to any employee of the Company, and (e) trade accounts payable of the Company. "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 at the date of this Indenture is located at 450 West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services. "Covenant Defeasance" has the meaning specified in Section 13.3. "Debt" means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent and without duplication, (i) every obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable); (v) every capital lease obligation of such Person; (vi) every obligation of such Person pursuant to derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any obligation of the type referred to in clauses (i) through (vii). "Defaulted Interest" has the meaning specified in Section 3.8. "Defeasance" has the meaning specified in Section 13.2. -4- "Delaware Trustee" means, with respect to any Trust, the Person identified as the "Delaware Trustee" in the related Trust Agreement, solely in its capacity as Delaware Trustee of such Trust under such Trust Agreement and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware trustee appointed as therein provided. "Depositary" means, with respect to Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, an organization registered as a clearing agency under the Exchange Act that is designated as Depositary by the Company pursuant to Section 3.1 with respect to such Securities. "Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2. "Distributions," with respect to the Trust Securities issued by a Trust, means amounts payable in respect of such Trust Securities as provided in the related Trust Agreement and referred to therein as "Distributions." "Dollar" or "$" means the currency of the United States of America that, as at the time of payment, is legal tender for the payment of public and private debts. "Event of Default," unless otherwise specified with respect to a series of Securities as contemplated by Section 3.1, has the meaning specified in Section 5.1. "Exchange Act" means the Securities Exchange Act of 1934 or any statute successor thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 1.4(g). "Extension Period" has the meaning specified in Section 3.12. "Floating Rate Index" means, with respect to Securities of any series that bear a floating interest rate, the index specified as the Floating Rate Index by the Company pursuant to Section 3.1 with respect to such series. "Global Security" means a Security that evidences all or part of the Securities of any series and that bears the legend set forth in Section 2.4 (or such legend as may be specified as contemplated by Section 3.1) issued to the Depositary or its nominee for such series, and registered in the name of such Depositary or its nominee. "Government Obligation" means (a) any security which is (i) a direct obligation of the United States of America or the government that issued the foreign currency in which such Securities are or may be payable for the payment of which the full faith and credit of the United States of America or such foreign government is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such foreign government the payment of which is uncondi- -5- tionally guaranteed as a full faith and credit obligation by the United States of America or such foreign government, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any Government Obligation which is specified in clause (a) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt. "Guarantee" means the unconditional guarantee of the payment of the principal of, any premium or interest and all other amounts due on, or in respect of, the Securities and of the obligations of the Company under this Indenture and the Securities by the Guarantor, as more fully set forth in Article XV. "Guarantee Agreements" means, with respect to any Trust, the Guarantee Agreements executed by the Company and by the Guarantor for the benefit of the Holders of the Preferred Securities issued by such Trust as modified, amended or supplemented from time to time. "Guaranteed Security" means a Security authenticated and delivered pursuant to this Indenture with a Guarantee endorsed on such Security, which Guarantee is substantially in the form described in Section 15.6 (except as otherwise permitted by Section 2.5) and executed pursuant to the provisions of Article XV. "Guarantor" means the Person named as the "Guarantor" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person. "Guarantor's Board of Directors" means the board of directors of the Guarantor or any duly authorized committee of that board. "Guarantor Board Resolution" means a copy of a resolution, certified by the Secretary or an Assistant Secretary of the Guarantor to have been duly adopted by the Guarantor's Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Guarantor's Officers' Certificate" means a certificate signed by the Chairman of the Guarantor's Board of Directors, a Vice Chairman of the Guarantor's Board of Directors, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Guarantor and delivered to the Trustee. "Guarantor Request" and "Guarantor Order" mean, respectively, a written request or order signed in the name of the Guarantor by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Guarantor Senior Debt" means the principal of, any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Guarantor -6- whether or not such claim for post-petition interest is allowed in such proceeding) and other amounts in respect of all Debt of the Guarantor, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior in right of payment to the Guarantee or to other Debt that is pari passu with, or subordinated to, the Guarantee, provided, that Guarantor Senior Debt shall not be deemed to include (a) any Guarantee, (b) any Debt of the Guarantor that, when incurred and without respect to any election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the Guarantor, (c) any Debt of the Guarantor to any of its Subsidiaries, (d) any Debt of the Guarantor to any employee of the Guarantor and (e) trade accounts payable of the Guarantor "Holder" means a Person in whose name a Security is registered in the Securities Register. "Indenture" means this instrument as originally executed or as it may from time to time be amended or supplemented by one or more amendments or indentures supplemental hereto entered into pursuant to the applicable provisions hereof including, for all purposes of this instrument and any such amendment or supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such amendment or supplemental indenture, respectively. The term "Indenture" shall also include the terms of each particular series of Securities established as contemplated by Section 3.1. "Interest Payment Date" means, with respect to any Security, the Stated Maturity of an installment of interest on such Security. "Investment Company Act" means the Investment Company Act of 1940 or any successor statute thereto, in each case as amended from time to time. "Investment Company Event" means the receipt by a Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of the occurrence of a change in law or regulation or a written change (including any announced prospective change) in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, there is more than an insubstantial risk that such Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act, which change or prospective change becomes effective or would become effective, as the case may be, on or after the date of the issuance of the Preferred Securities of such Trust. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind. "Maturity" means, when used with respect to any Security, the date on which the principal of such Security or any 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" means a written notice of the kind specified in Section 5.1(d) or 5.1(e). "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company and delivered to the Trustee. -7- "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Company or the Guarantor or any Affiliate of the Company or the Guarantor. "Original Issue Date" means the date of issuance specified as such in each Security. "Outstanding" means, when used with respect to any Securities, 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 in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent or the Guarantor shall act as 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; (iii) Securities as to which Defeasance has been effected pursuant to Section 13.2; (iv) Securities which have been paid pursuant to Section 3.7 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to the provisions of this Indenture unless proof satisfactory to the Trustee is presented that any such Securities are held by a bona fide purchaser in whose hands such Securities are valid, binding and legal obligations of the Company; and (v) Securities converted or exchanged into other securities of the Company if the terms of such Securities provide for conversion or exchange pursuant to Section 3.1; provided, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or 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 that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or such other obligor. Upon the written request of the Trustee, the Company or the Guarantor shall furnish to the Trustee promptly an Officers' Certificate or a Guarantor's Officer's Certificate listing and identifying all Securities, if any, known by the Company or the Guarantor to be owned or held by or for the account of the Company, the Guarantor or any other obligor on the Securities or any Affiliate of the Company, the Guarantor or such obligor, and subject to the provisions of Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate or Guarantor's Officer's Certificate as conclusive evidence of the facts therein set forth and of the fact that all -8- Securities not listed therein are Outstanding for the purpose of any such determination. Notwithstanding anything herein to the contrary, Securities of any series initially issued to a Trust that are owned by such Trust shall be deemed to be Outstanding notwithstanding the ownership by the Company or an Affiliate of any beneficial interest in such Trust. "Paying Agent" means any Person authorized by the Company to pay the principal of, any premium or interest on or other amounts with respect to any Securities on behalf of the Company and any Person authorized by the Guarantor to pay amounts due with respect to the Guarantee on behalf of the Guarantor. "Person" means any legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, government or any agency or political subdivision thereof or any other entity of whatever nature. "Place of Payment" means, with respect to the Securities of any series, the place or places where the principal of, any premium and interest on or other amounts with respect to the Securities of such series are payable as specified pursuant to Section 3.1. "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. For the purposes of this definition, any Security authenticated and delivered under Section 3.7 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. "Preferred Securities" has the meaning specified in the first recital of this Indenture. "Proceeding" means, in respect of any Person, (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceedings relating to such Person, its creditors or its property, (ii) any proceeding for the liquidation, dissolution or other winding up of such Person, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (iii) any assignment by such Person for the benefit of creditors or (iv) any other marshaling of the assets of such Person. "Property Trustee" means, with respect to any Trust, the Person identified as the "Property Trustee" in the related Trust Agreement, solely in its capacity as Property Trustee of such Trust under such Trust Agreement and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as therein provided. "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 fixed by or pursuant to this Indenture. "Regular Record Date" for the interest payable on any Interest Payment Date with respect to the Securities of a series means, unless otherwise provided pursuant to Section 3.1 with respect to Securities of -9- such series, the date that is fifteen days next preceding such Interest Payment Date (whether or not a Business Day). "Responsible Officer," when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any senior trust officer, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Rights Plan" means a plan of the Company providing for the issuance by the Company to all holders of its Common Shares of rights entitling the holders thereof to subscribe for or purchase shares of any class or series of capital stock of the Company which rights (i) are deemed to be transferred with such shares of such Common Shares and (ii) are also issued in respect of future issuances of such Common Shares, in each case until the occurrence of a specified event or events. "Securities" or "Security" means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture. "Securities Act" means the Securities Act of 1933 or any successor statute thereto, in each case as amended from time to time. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 3.6. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.8. "Stated Maturity," when used with respect to any Security or any installment of principal thereof or any interest (including any Additional Interest) thereon, or any Additional Amounts with respect thereto, 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 (including any Additional Interest) is, or such other amounts are, due and payable, as such date may, in the case of the Stated Maturity of the principal on any Security, be shortened or extended as provided in such Security and this Indenture and, in the case of any installment of interest, subject to the deferral of any such date in the case of any Extension Period. "Subsidiary" means, in respect of any Person, a Person more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries, or by such Person and one or more other Subsidiaries. For purposes of this definition, "voting stock" means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. -10- "Tax Event" means the receipt by an Trust of a Opinion of Counsel experienced in such matters to the effect that, as a result of (a) any amendment to or change (including any announced prospective change) in the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein or (b) any judicial decision or any official administrative pronouncement (including any private letter ruling, technical advice memorandum or field service advice) or regulatory procedure (an "Administrative Action"), regardless of whether such judicial decision or Administrative Action is issued to or in connection with a proceeding involving the Company or such Trust and whether or not subject to review or appeal, which amendment, change, judicial decision or Administrative Action is enacted, promulgated or announced, in each case, on or after the date hereof, there is more than an insubstantial risk that (i) such Trust is, or will be within 90 days of the date of such opinion, subject to United States Federal income tax with respect to income received or accrued on the securities held by such Trust, (ii) interest payable by the Company or original issue discount accruing on Securities issued to such Trust is not, or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States Federal income tax purposes, or (iii) such Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "Trust" has the meaning specified in the first recital of this Indenture. "Trust Agreement" means, with respect to any Trust, the trust agreement or other governing instrument of such Trust. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and as in effect on the date of this Indenture; provided, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trust Securities" has the meaning specified in the first recital of this Indenture. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument, solely in its capacity as such and not in its individual capacity, until a successor Trustee shall have become such 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. Section 1.2. Compliance Certificates and Opinions. (a) Upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers' Certificate or a Guarantor's Officers' Certificate, as the case may be, stating that all conditions precedent (including covenants compliance with which constitutes a condition 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 (including covenants compliance with which constitutes a condition 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 -11- 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 the certificates provided pursuant to Sections 10.4 and 10.5) shall include: (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions in such certificate or opinion are based; (iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 1.3. Forms 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 several documents. (b) Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows after reasonable inquiry that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, unless such counsel knows after reasonable inquiry 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. (d) Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Guarantor's Board Resolution, Officers' Certificate, Guarantor's Officer's Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other inadvertent or unintentional error or omission shall be discovered therein, a new document or instrument may be substituted therefor in corrected form with the same -12- force and effect as if originally received in the corrected form and, irrespective of the date or dates of the actual execution and/or delivery thereof, such substitute document or instrument shall be deemed to have been executed and/or delivered as of the date or dates required with respect to the document or instrument for which it is substituted. Without limiting the generality of the foregoing, any Securities issued under the authority of such defective document or instrument shall nevertheless be the valid obligations of the Company entitled to the benefits of this Indenture equally and ratably with all other Outstanding Securities. Section 1.4. Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made 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 is or are delivered to the Trustee, and, where it is hereby expressly required, to the Company or the Guarantor or both of them. 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 conclusive in favor of the Trustee, the Company and the Guarantor and any agent of the Trustee, the Company and the Guarantor, 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 the 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 or her the execution thereof. Where such execution is by a Person acting in other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient. (c) The ownership of Securities shall be proved by the Securities Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by 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, the Company or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security. (e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided, that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in paragraph (f) of this Section. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no -13- other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date, provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (f) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date, provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect). Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6. (g) With respect to any record date set pursuant to paragraph (e) or (f) of this Section, the party hereto that sets such record date may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided, that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. (h) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. -14- Section 1.5. Notices, Etc. to Trustee, Company and the Guarantor. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with: (a) the Trustee by any Holder, any holder of Preferred Securities, the Company or the Guarantor 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 (b) the Company or the Guarantor, as the case may be, by the Trustee, any Holder or any holder of Preferred Securities shall be sufficient for every purpose (except as otherwise provided in Section 5.1) hereunder if in writing and mailed, first class, postage prepaid, to the Company or the Guarantor, as the case may be, addressed to it at the address of its principal office specified in the first paragraph of this instrument, Attention: General Counsel, in the case of the Company, and Attention: General Counsel, in the case of the Guarantor, or at any other address previously furnished in writing to the Trustee by the Company or the Guarantor, as the case may be. Section 1.6. Notice to Holders; Waiver. 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 the address of such Holder as it appears in the Securities Register, not later than the latest date (if any), and not earlier than the earliest date (if any), 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. If, by reason of the suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders when said notice is required to be given pursuant to any provision of this Indenture or of any Security, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient notification for every purpose hereunder. 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. Section 1.7. Conflict with Trust Indenture Act. If any provision of this 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 this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. -15- 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. All covenants and agreements in this Indenture by the Guarantor shall bind its successors and assigns, whether so expressed or not. Section 1.10. Separability Clause. If 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 or the Guarantee, express or implied, shall give to any Person, other than the parties hereto and their successors and assigns, the holders of Company Senior Debt and Guarantor Senior Debt, the Holders of the Securities and, to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders of Preferred Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 1.12. Governing Law. This Indenture, the Securities and the guarantee shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof. Section 1.13. Non-Business Days. If any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest, premium or principal on or other amounts in respect of such Security need not be made on such date, but may be made on the next succeeding Business Day (and no interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, until such next succeeding Business Day) except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity. -16- Section 1.14. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of, any premium or interest on, or other amounts in respect of, any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or the Guarantor or of any successor company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of this Indenture and the issue of the Securities. Section 1.15. Submission to Jurisdiction. Each of the Company and the Guarantor agrees that any judicial proceedings instituted in relation to any matter arising under this Indenture or the Securities may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Indenture, each of the Company and the Guarantor hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. Each of the Company and the Guarantor also irrevocably and unconditionally waives for the benefit of the Trustee and the Holders of the Securities any immunity from jurisdiction and any immunity from legal process (whether through services of notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of this Indenture. Each of the Company and the Guarantor hereby irrevocably designates and appoints for the benefit of the Trustee and the Holders of the Securities for the term of this Indenture, CT Corporation, 111 8th Avenue, New York, New York 10011, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to Mutual Group Ltd., One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, Attention: General Counsel, and to Mutual Risk Management Ltd., 44 Church Street, Hamilton HM12 Bermuda, Attention: General Counsel) brought against it with respect to any such proceeding in any such court in The City of New York, such service being hereby acknowledged by each of the Company and the Guarantor to be effective and binding service on it in every respect whether or not the Company or the Guarantor shall then be doing, or shall have at any time done, business in New York. Such appointment shall be irrevocable so long as any of the Securities or the obligations of the Company or the Guarantor hereunder remain outstanding until the appointment of a successor by the Company or the Guarantor and such successor's acceptance of such appointment. Upon such acceptance, the Company and the Guarantor shall notify the Trustee of the name and address of such successor. Each of the Company and the Guarantor further agrees for the benefit of the Trustee and the Holders of the Securities to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said CT Corporation in full force and effect so long as any of the Securities or the obligations of the Company or the Guarantor hereunder shall be outstanding. The Trustee shall not be obligated, and shall have no responsibility, with respect to any failure by the Company or the Guarantor to take any such action. Nothing herein shall affect the right of the Trustee or any Holder to institute proceedings against the Company or the Guarantor in the courts of any other jurisdiction or jurisdictions. -17- ARTICLE II Security Forms Section 2.1. Forms Generally. The Securities of each series and the Trustee's certificate of authentication shall be in substantially the forms set forth in this Article, or in such other form or forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the 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 with respect to the authentication and delivery of such Securities. The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods, if required by any securities exchange on which the Securities may be listed, on a steel engraved border or steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such securities. Section 2.2. Form of Face of Security. Mutual Group, Ltd. [Title of Security] No. $ MUTUAL GROUP, LTD., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the "Company", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _______________, or registered assigns, the principal sum of __________ Dollars on __________ __, ___ [if the Security is a Global Security, then insert-- or such other principal amount represented hereby as may be set forth in the records of the Securities Registrar hereinafter referred to in accordance with the Indenture,] [; provided, that the Company may shorten or extend the Stated Maturity of the principal of this Security to a date not earlier than ________ and not later than ________ at any time on one or more occasions, subject to certain conditions specified in Section 3.15 of the Indenture.] The Company further promises to pay interest on said principal sum from _________, ___ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [monthly] [quarterly] [semi- annually] [if applicable, insert--(subject to deferral as set forth -18- herein)] in arrears on [insert applicable Interest Payment Dates] of each year, commencing ________, ____, at the rate [if fixed rate, insert--of ___%] [if floating rate, insert--equal to ____% in excess of the Floating Rate Index] per annum, [if applicable, insert--together with Additional Tax Sums, if any, as provided in Section 10.7 of the Indenture] until the principal hereof is paid or duly provided for or made available for payment [if applicable, insert--; provided, that any overdue principal, premium, Additional Amounts, Additional Tax Sums and any overdue installment of interest shall bear additional interest at the rate [if fixed rate, insert--of ___%] [if floating rate, insert--equal to ___% in excess of the Floating Rate Index] per annum (to the extent that the payment of such interest shall be legally enforceable), compounded [monthly] [quarterly] [semi-annually], from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year of twelve 30- day months and the actual days elapsed in a partial month in such period. The amount of interest payable for any full interest period shall be computed by dividing the applicable rate per annum by [twelve/four/two]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment [if applicable, insert--, which shall be the [____________ or ____________] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date]. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (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 Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. [If applicable, insert--So long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time during the term of this Security, from time to time to defer the payment of interest on this Security for up to _______ consecutive [monthly] [quarterly] [semi-annual] interest payment periods with respect to each deferral period (each an "Extension Period") [If applicable, insert--, during which Extension Periods the Company shall have the right to make no payments or partial payments of interest on any Interest Payment Date, and] at the end of which the Company shall pay all interest then accrued and unpaid including any Additional Interest, as provided below; provided, that no Extension Period shall extend beyond the Stated Maturity of the principal of this Security [If Stated Maturity can be shortened or extended, insert--, as then in effect,] and no such Extension Period may end on a date other than an Interest Payment Date; and provided, further, that during any such Extension Period, the Company shall not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company's capital stock or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to this Security (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable -19- Extension Period, (b) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (c) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). Prior to the termination of any such Extension Period, the Company may further defer the payment of interest, provided, that no Extension Period shall exceed ______ consecutive [monthly] [quarterly] [semi-annual] interest payment periods, extend beyond the Stated Maturity of the principal of this Security or end on a date other than an Interest Payment Date. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due on any Interest Payment Date, the Company may elect to begin a new Extension Period, subject to the above conditions. No interest shall be due and payable during an Extension Period, except at the end thereof, but each installment of interest that would otherwise have been due and payable during such Extension shall bear Additional Interest (to the extent that the payment of such interest shall be legally enforceable) at the rate of [if fixed rate, insert -- ______%] [if floating rate, insert -- equal to _____% in excess of the Floating Rate Index] per annum, compounded [monthly] [quarterly] [semi-annually] and calculated as set forth in the first paragraph of this Security, from the dates on which amounts would otherwise have been due and payable until paid or made available for payment. The Company shall give the Holder of this Security and the Trustee notice of its election to begin any Extension Period at least one Business Day prior to the next succeeding Interest Payment Date on which interest on this Security would be payable but for such deferral [if applicable, insert--or so long as such Securities are held by [insert name of applicable Trust], at least one Business Day prior to the earlier of (i) the next succeeding date on which Distributions on the Preferred Securities of such Trust would be payable but for such deferral and (ii) the date on which the Administrative Trustees of such Trust are required to give notice to holders of such Preferred Securities of the record date or the date such Distributions are payable]. Payment of the principal of and any premium and interest on this Security will be made at the office or agency of the Company maintained for that purpose in the [insert Place of Payment], in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert--; provided, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by wire transfer to an account at a banking institution in the United States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date]. The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Company Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the acceptance of the subordination provisions -20- contained herein and in the Indenture by each holder of Company Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. MUTUAL GROUP, LTD. By: ____________________________________ Name: Title: Attest: __________________________________ [Secretary or Assistant Secretary] Section 2.3. Form of Reverse of Security. This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under the Junior Subordinated Indenture, dated as of ________, _____ (herein called the "Indenture"), among the Company, Mutual Risk Management Ltd. (the "Guarantor," which term includes any successor guarantor under the Indenture) and The Chase Manhattan Bank as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee, the holders of Company Senior Debt, the holders of Guarantor Senior Debt and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert--, limited in aggregate principal amount to $_______]. All terms used in this Security that are defined in the Indenture [if applicable, insert--or in the Amended and Restated Trust Agreement, dated as of _________, ___ (as modified, amended or supplemented from time to time, the "Trust Agreement"), relating to [insert name of Trust] (the "Trust") among the Company, as Depositor and Issuer, the Trustees named therein and the Holders from time to time of the Trust Securities issued pursuant thereto,] shall have the meanings assigned to them in the Indenture [if applicable, insert--or the Trust Agreement, as the case may be]. -21- The terms of this Security include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act. This Security is subject to all such terms and the Holder of this Security is referred to the Indenture and the Trust Indenture Act for a statement of such terms. [If applicable, insert--This Security is entitled to the benefit of the Guarantee of the Guarantor. Reference is made to Article XV of the Indenture and to the Guarantee for terms relating to such Guarantee.] [If applicable, insert--The Company may at any time, at its option, on or after _________, ____, and subject to the terms and conditions of Article XI of the Indenture, redeem this Security in whole at any time or in part from time to time, at [if applicable, insert-- the following Redemption Prices (expressed as percentages of the principal amount hereof): If redeemed during the 12-month period beginning _____________, Redemption Year Price ---- ---------- and thereafter at a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest [if applicable, insert--, including any Additional Interest,] to but excluding the date fixed for redemption,] [a Redemption Price equal to 100% of the principal amount hereof, together, in the case of any such redemption, with accrued interest [if applicable, insert--, including any Additional Interest,] to but excluding the date fixed for redemption.] [If applicable, insert--In addition, upon the occurrence and during the continuation of a Tax Event or an Investment Company Event in respect of the Trust, the Company may, at its option, at any time within 90 days of the occurrence and during the continuation of such Tax Event or Investment Company Event, as the case may be, redeem this Security, in whole but not in part, subject to the terms and conditions of Article XI of the Indenture, at a redemption price equal to [insert formula]. [If the Security is subject to redemption of any kind, insert--In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.] [If applicable, insert - The Securities of this series are not redeemable prior to Stated Maturity.] [The Indenture contains provisions for satisfaction and discharge of [the entire indebtedness of] [or] [certain restrictive covenants and Events of Default with respect to] this Security [, in each case] upon compliance by the Company or the Guarantor with certain conditions set forth in the Indenture.] The Indenture permits, with certain exceptions as therein provided, the Company, the Guarantor and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in -22- any manner the rights and obligations of the Company or the Guarantor, as the case may be, and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company or the Guarantor, as the case may be, 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 Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security 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 Security. [If the Security is not a Discount Security, insert--As provided in and subject to the provisions of the Indenture, if an Event of Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of this series may declare the principal amount of all the Securities of this series to be due and payable immediately, by a notice in writing to the Company and, in certain cases, the Guarantor (and to the Trustee if given by Holders) [if applicable, insert--, provided, that, if upon an Event of Default, the Trustee or such Holders fail to declare the principal of all the Outstanding Securities of this series to be immediately due and payable, the holders of at least 25% in aggregate Liquidation Amount of the Preferred Securities then Outstanding shall have the right to make such declaration by a notice in writing to the Company and the Trustee]; and upon any such declaration the principal amount of and the accrued interest (including any Additional Interest) on all the Securities of this series shall become immediately due and payable, provided, that the payment of principal and interest (including any Additional Interest) on such Securities shall remain subordinated to the extent provided in Article XIV of the Indenture.] [If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.] No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest [insert if applicable--including any Additional Interest)] on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Indenture for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, -23- and thereupon one or more new Securities of this series, of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $____________ and any integral multiple of $____________ in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary. The Company, the Guarantor, if applicable, and, by its acceptance of this Security or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Security agree that for United States Federal, state and local tax purposes it is intended that this Security constitute indebtedness. This Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof. Section 2.4. Additional Provisions Required in Global Security. Unless otherwise specified as contemplated by Section 3.1, any Global Security issued hereunder shall, in addition to the provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the following form: "THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND 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, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE." Section 2.5. Additional Provisions Required in Guaranteed Security. -24- Any Guaranteed Security issued hereunder shall, in addition to the provisions contained in Sections 2.2, 2.3 and 2.4 (if applicable), have endorsed thereon the Guarantee in substantially the form set forth in Section 15.6 or in such other form as shall be established by or pursuant to a Guarantor Board Resolution, or established in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture. Section 2.6. Form of Trustee's Certificate of Authentication. The Trustee's certificates 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. Dated: THE CHASE MANHATTAN BANK, as Trustee By: ____________________________________ Authorized officer ARTICLE III The Securities Section 3.1. Title and Terms. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and set forth in an Officers' Certificate or established in one or more indentures supplemental hereto: (a) the title of the securities of such series, which shall distinguish the Securities of the series from all other Securities; (b) the limit, if any, upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to the provisions of this Indenture and except for any Securities that, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder); -25- (c) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the method of determination thereof, and any dates on which or circumstances under which, the Company shall have the right to extend or shorten such Stated Maturity or Maturities; (d) the rate or rates at which the Securities of such series shall bear interest, if any, and, if such interest is determined by reference to a floating interest rate, the Floating Rate Index and Calculation Agent, the rate or rates and extent to which Additional Interest, if any, shall be payable in respect of any Securities of such series, the date or dates from which any such interest or Additional Interest shall accrue, the Interest Payment Dates on which such interest shall be payable, the right, pursuant to Section 3.12 or as otherwise set forth therein, of the Company to defer or extend an Interest Payment Date, and the Regular Record Date for the interest payable on any Interest Payment Date or the method by which any of the foregoing shall be determined; (e) the place or places where the principal of and any premium and interest (including any Additional Interest) on the Securities of such series shall be payable, the place or places where the Securities of such series and any related Guarantee may be presented for registration of transfer or exchange, any restrictions that may be applicable to any such transfer or exchange in addition to or in lieu of those set forth herein, and the place or places where notices and demands to or upon the Company or the Guarantor in respect of the Securities of such series and any related Guarantee may be made; (f) the obligation of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions, or at the option of the Company or a Holder thereof, and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation or option; (g) if the amount of principal of or any premium or interest on any Securities of such series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined; (h) if other than Dollars, the currency or currencies (including any currency unit or units) in which the principal of and any premium and interest (including any Additional Interest) on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated and the manner of determining the equivalent thereof in Dollars for any purpose, including for purposes of the definition of Outstanding; (i) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable or the manner in which such amount shall be determined; -26- (j) if other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof; (k) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined; (l) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.2 or Section 13.3 or both such Sections; (m) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends that shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.4 and any circumstances in addition to or in lieu of those set forth in Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof; (n) the additions, modifications or deletions, if any, in the Events of Default or covenants of the Company, the Guarantor set forth herein with respect to the Securities of such series; (o) the appointment of any Paying Agent or agents for the Securities of such series; (p) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange; (q) if such Securities are to be initially issued to a Trust, the form or forms of the Trust Agreement and Guarantee Agreement relating thereto; (r) if other than as set forth herein, the relative degree, if any, to which the Securities of the series and the Guarantee in respect thereof, if any, shall be senior to or be subordinated to other series of Securities and the Guarantee in respect thereof, if any, in right of payment, whether such other series of Securities are Outstanding or not; (s) the denominations in which any Securities of such series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof; (t) if applicable, whether such Securities shall not be Guaranteed Securities; and -27- (u) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.1(e)). All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any indenture supplemental hereto. 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. The Securities shall be subordinated in right of payment to Company Senior Debt as provided in Article XIV. Section 3.2. Denominations. The Securities of each series shall be issuable only in registered form without coupons and in denominations of $1,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified as contemplated by Section 3.1. Section 3.3. Execution, Authentication, Delivery and Dating. (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, 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. 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. (b) 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 by the Company to the Trustee for authentication with, if applicable, the Guarantee endorsed thereon duly executed by the Guarantor, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by 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 shall be fully protected in relying upon, an Opinion of Counsel stating: (i) if the form 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; -28- (ii) if the terms 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 (iii) 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 terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. If 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 will affect the Trustee's own rights, duties, indemnities or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee. (c) Notwithstanding the provisions of Section 3.1 and of paragraph (b) of this Section, 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 paragraph (b) of this Section at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. (d) 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 the manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. 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 3.10, 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. (e) Each Security shall be dated the date of its authentication. Section 3.4. Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities that 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, if applicable, a temporary Guarantee endorsed thereon duly executed by the Guarantor and 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. A temporary Guarantee shall be substantially in the form of the definitive Guarantee in lieu of which it is issued, but with such omissions, insertions and variations as may be appropriate for a temporary Guarantee, all as may be determined by the Guarantor. -29- (b) If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company designated for that purpose without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations having the same Original Issue Date and Stated Maturity and having the same terms as such temporary Securities with, if applicable, a Guarantee endorsed thereon duly executed by the Guarantor. 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. Section 3.5. Global Securities. (a) Each Global Security issued under this Indenture shall be registered in the name of the Depositary designated by the Company for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. (b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (i) such Depositary advises the Trustee and the Company in writing that such Depositary is no longer willing or able to properly discharge its responsibilities as Depositary with respect to such Global Security and no qualified successor is appointed by the Company within 90 days of receipt by the Company of such notice, (ii) such Depositary has ceased to be a clearing agency registered under the Exchange Act and no qualified successor is appointed by the Company within 90 days after its receipt of notice or its becoming aware of such event, (iii) the Company executes and delivers to the Trustee a Company Order stating that the Company elects to terminate the book-entry system through the Depositary or (iv) there shall have occurred and be continuing an Event of Default with respect to such Global Security. (c) If any Global Security is to be exchanged for other Securities or canceled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Securities Registrar for exchange or cancellation as provided in this Article. If any Global Security is to be exchanged for other Securities or canceled in part, or if another Security is to be exchanged in whole or in part for a beneficial interest in any Global Security, then either (i) such Global Security shall be so surrendered for exchange or cancellation as provided in this Article or (ii) the principal amount thereof shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or canceled, or equal to the principal amount of such other Security to be so exchanged for a beneficial interest therein, as the case may be, by means of an appropriate adjustment made on the records of the Securities Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Security by the Depositary, accompanied by registration instructions, the Trustee shall, subject to this Section and as otherwise provided in this Article, authenticate and deliver any Securities issuable in exchange for such Global Security (or any portion thereof) in accordance with the instructions of the Depositary with, if applicable, a Guarantee endorsed thereon duly -30- executed by the Guarantor. The Trustee shall not be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. (d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Article, Section 9.6 or 11.7 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. (e) Securities distributed to holders of Book-Entry Preferred Securities (as defined in the applicable Trust Agreement) upon the dissolution of a Trust shall be distributed in the form of one or more Global Securities registered in the name of a Depositary or its nominee, and deposited with the Securities Registrar, as custodian for such Depositary, or with such Depositary, for credit by the Depositary to the respective accounts of the beneficial owners of the Securities represented thereby (or such other accounts as they may direct). Securities distributed to holders of Preferred Securities other than Book-Entry Preferred Securities upon the dissolution of a Trust shall not be issued in the form of a Global Security or any other form intended to facilitate book-entry trading in beneficial interests in such Securities. (f) The Depositary or its nominee, as the registered owner of a Global Security, shall be the Holder of such Global Security for all purposes under this Indenture and the Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly, any such owner's beneficial interest in a Global Security shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members. Neither the Trustee nor the Securities Registrar shall have any liability in respect of any transfers effected by the Depositary. (g) The rights of owners of beneficial interests in a Global Security shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such owners and the Depositary and/or its Agent Members. (h) The registered holder of a Global Security may grant proxies to any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture, the Guarantee and the Securities. Section 3.6. Registration, Transfer and Exchange. (a) The Company shall cause to be kept at the Corporate Trust Office a 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 "Securities Register"). The Trustee is hereby appointed "Securities 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 a series at the office or agency of the Company designated for that purpose, 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 -31- of any authorized denominations and of like tenor and aggregate principal amount with, if applicable, a Guarantee endorsed thereon duly executed by the Guarantor. (c) At the option of the Holder, Securities of a series may be exchanged for other Securities of the same series of any authorized denominations and of like tenor and aggregate principal amount, 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 that the Holder making the exchange is entitled to receive with, if applicable, a Guarantee endorsed thereon duly executed by the Guarantor. (d) All Securities issued upon any 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 transfer or exchange. (e) Every Security presented or surrendered for 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 Securities Registrar, duly executed by the Holder thereof or such Holder's attorney duly authorized in writing. (f) No service charge shall be made to a Holder for any transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Securities. (g) The Company shall not be required to issue, register the transfer of or exchange any Security 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 any such Securities 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 such Security to be redeemed in part. (h) Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. Section 3.7. Mutilated, Destroyed, Lost and Stolen Securities. (a) If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series, of like tenor and aggregate principal amount and bearing a number not contemporaneously outstanding with, if applicable, a Guarantee endorsed thereon duly executed by the Guarantor. (b) If there shall be delivered to the Company, the Guarantor, if applicable, 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 harmless, then, in the absence of notice to the -32- Company, the Guarantor or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series, of like tenor and principal amount as such destroyed, lost or stolen Security and bearing a number not contemporaneously outstanding with, if applicable, a Guarantee endorsed thereon duly executed by the Guarantor. (c) If 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 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) connected therewith. (e) Every new Security of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and the Guarantor, if applicable, whether or not the mutilated, 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 the same series duly issued hereunder. (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 3.8. Payment of Interest and Additional Interest; Interest Rights Preserved. (a) Except as otherwise contemplated by Section 3.1 with respect to any series of Securities, interest and Additional Interest on any Security of any series that 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 in respect of Securities of such series, except that, unless otherwise provided in the Securities of such series, interest and any Additional Interest payable on the Stated Maturity, redemption or repayment of the principal of a Security shall be paid to the Person to whom principal is paid. The initial payment of interest on any Security of any series that is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 3.1 with respect to the related series of Securities. (b) Any interest on any Security of any series that is due and payable, but is not timely paid or duly provided for, on any Interest Payment Date for Securities of such series (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date 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 paragraph (i) or (ii) below: (i) The Company or the Guarantor, if applicable, 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 for the -33- payment of such Defaulted Interest, which shall be fixed in the following manner. The Company or the Guarantor, if applicable, 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 at least 30 days prior to such date, and at the same time the Company or the Guarantor, if applicable, 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. Thereupon the Trustee shall fix a 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 and the Guarantor, if applicable, of such Special Record Date and, in the name and at the expense of the Company or the Guarantor, if applicable, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.6 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; or (ii) The Company or the Guarantor, if applicable, may 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 or the Guarantor, if applicable, to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. (c) Unless otherwise provided in or pursuant to this Indenture or any supplemental indenture, interest on the Securities of any series will be payable, at the option of the Company or the Guarantor, (i) by check mailed to the address of the Holder as such address appears in the Securities Register for the Securities of such series or (ii) by wire transfer to an account at a banking institution in the United States that the Holder designates in writing to the Trustee at least 10 Business Days prior to the Interest Payment Date. Section 3.9. Persons Deemed Owners. (a) Prior to due presentment of a Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor 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, any premium and (subject to Section 3.8) interest on and any other amounts with respect to such Security and for all other purposes whatsoever, and none of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary. (b) No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee as -34- the owner of such Global Security for all purposes whatsoever. None of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominee) as Holder of any Security. Section 3.10. Cancellation. All Securities surrendered for payment, redemption, 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 any such Securities surrendered to the Trustee for any such purpose shall be promptly canceled by it. The Company or the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company or the Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder that 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 by the Trustee in accordance with its customary practices and the Trustee shall deliver to the Company a certificate of such disposition. Section 3.11. 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 for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in any partial month in such period, and interest on the Securities of each series for a full period shall be computed by dividing the rate per annum by the number of interest periods that together constitute a full twelve months. Section 3.12. Deferrals of Interest Payment Dates. If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of a particular series, so long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time during the term of such series, from time to time to defer the payment of interest on such Securities for such period or periods as may be specified as contemplated by Section 3.1 (each such period, an "Extension Period"), during which Extension Periods the Company shall have the right to make no payments or partial payments of interest on any Interest Payment Date. No Extension Period shall end on a date other than an Interest Payment Date. At the end of any such Extension Period, the Company shall pay all interest then accrued and unpaid on the Securities together with any Additional Interest thereon at the rate specified for the Securities of such series to the extent permitted by applicable law; provided, that no Extension Period shall extend beyond the Stated Maturity of the principal of the Securities of such series; and provided, further, that during any such Extension Period, the Company shall not (i) declare or pay any dividends or distributions -35- on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company's capital stock or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (b) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (c) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). Prior to the termination of any such Extension Period, the Company may further defer the payment of interest, provided, that no Extension Period shall exceed the period or periods specified in such Securities, extend beyond the Stated Maturity of the principal of such Securities or end on a date other than an Interest Payment Date. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due on any Interest Payment Date, the Company may elect to begin a new Extension Period, subject to the above conditions. No interest or Additional Interest shall be due and payable during an Extension Period, except at the end thereof, but each installment of interest that would otherwise have been due and payable during such Extension Period shall bear Additional Interest as and to the extent as may be specified as contemplated by Section 3.1. The Company shall give the Holders of the Securities of such series and the Trustee written notice of its election to begin any such Extension Period at least one Business Day prior to the next succeeding Interest Payment Date on which interest on Securities of such series would be payable but for such deferral or, with respect to any Securities of a series initially issued to a Trust, so long as any such Securities are held by such Trust, at least one Business Day prior to the earlier of (i) the next succeeding date on which Distributions on the Preferred Securities of such Trust would be payable but for such deferral and (ii) the date on which the Property Trustee of such Trust is required to give notice to any securities exchange or other applicable self-regulatory organization or to holders of such Preferred Securities of the record date or the date such Distributions are payable. Section 3.13. Right of Set-Off. With respect to the Securities of a series initially issued to a Trust, notwithstanding anything to the contrary herein, each of the Company and the Guarantor shall have the right to set off any payment it is otherwise required to make in respect of any such Security to the extent the Company or the Guarantor has theretofore made, or is concurrently on the date of such payment making, a payment under the Guarantee Agreements relating to such Security or to a holder of Preferred Securities pursuant to an action undertaken under Section 5.8 of this Indenture. -36- Section 3.14. Agreed Tax Treatment. Each Security issued hereunder shall provide that the Company, the Guarantor, if applicable, and, by its acceptance or acquisition of a Security or a beneficial interest therein, the Holder of, and any Person that acquires a direct or indirect beneficial interest in, such Security, intend and agree to treat such Security as indebtedness of the Company for United States Federal, state and local tax purposes and, with respect to Securities of a series initially issued to a Trust, to treat Preferred Securities of such Trust (including but not limited to all payments and proceeds with respect to such Preferred Securities) as an undivided beneficial ownership interest in the Securities (and payments and proceeds therefrom, respectively) for United States Federal, state and local tax purposes. The provisions of this Indenture shall be interpreted to further this intention and agreement of the parties. Section 3.15. Shortening and Extending Stated Maturity. (a) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to shorten the Stated Maturity of the principal of the Securities of such series at any time to any date not earlier than the first date on which the Company has the right to redeem the Securities of such series. In the event that the Company elects to shorten the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. (b) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities of any series, the Company shall have the right to extend the Stated Maturity of the principal of the Securities of such series at any time. In the event that the Company elects to extend the Stated Maturity of the Securities of such series, it shall give written notice to the Trustee. Section 3.16. 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 and other similar or related materials as a convenience to Holders; provided, that any such notice or other materials may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or other materials 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. ARTICLE IV Satisfaction and Discharge Section 4.1. Satisfaction and Discharge of Indenture. Upon a Company Request by the Company or a Guarantor Request by the Guarantor, this Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for, and as otherwise provided in this Section) and the Trustee, on the -37- demand of and at the expense of the Company or the Guarantor, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) either (i) all Securities theretofore authenticated and delivered (other than (A) Securities that have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.7 and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor or discharged from such trust as provided in Section 10.3) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year of the date of deposit, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company or the Guarantor, and the Company or the Guarantor, in the case of paragraph (ii)(A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose (x) an amount in the currency or currencies in which the Securities of such series are payable, (y) 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 (z) a combination thereof, in each case where any Government Obligations are deposited, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal, any premium and interest (including any Additional Interest) thereon and any Additional Amounts in respect thereof to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (b) the Company or the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company and the Guarantor; and (c) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel or the Guarantor has delivered to the Trustee a Guarantor's 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. -38- Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company and the Guarantor to the Trustee under Section 6.7, the obligations of the Company and the Guarantor to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to paragraph (a)(ii) of this Section, the obligations of the Trustee under Section 4.2 and Section 10.3(e) shall survive. The Company and the Guarantor, jointly and severally, agree to pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to this Section 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 Outstanding Securities. Section 4.2. Application of Trust Money. Subject to the provisions of Section 10.3(e), all money and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by the Trustee, 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 its own Paying Agent or the Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest (including any Additional Interest) for the payment of which such money and Government Obligations (including the proceeds thereof) have been deposited with or received by the Trustee. Moneys held by the Trustee under this Section shall not be subject to the claims of holders of Company Senior Debt under Article XIV or Guarantor Senior Debt under Article XVI. ARTICLE V Remedies Section 5.1. Events of Default. "Event of Default", wherever used herein with respect to the 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) except as may be specified pursuant to Section 3.1: (a) default in the payment of any interest upon any Security of that series, including any Additional Interest in respect thereof, or any Additional Amounts payable with respect thereto, when such interest becomes, or such Additional Amounts become, due and payable, and continuance of such default for a period of 30 days (subject to the deferral of any due date in the case of an Extension Period); or (b) default in the payment of the principal of or any premium on any Security of that series at its Maturity, or any Additional Amounts payable with respect thereto, when such principal or premium becomes, or such Additional Amounts become, due and payable at their Maturity; or -39- (c) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of such series; or (d) default in the performance, or breach, of any covenant or warranty of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is specifically dealt with elsewhere in this Section or that has expressly been included in this Indenture solely for the benefit of series of Securities other than such series), and continuance of such default or breach for a period of 30 days after there has been given, by registered or certified mail, to the Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) by the Trustee or to the Company, the Guarantor (if a Guarantee is in effect with respect to Securities of that series) 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, unless the Trustee, or the Trustee and the Holders of a principal amount of Securities of such series not less than the principal amount of Securities that gave such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; or (e) a default under any (i) indebtedness for any money borrowed by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) (including a default with respect to Securities of any series other than that series), (ii) mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series), or (iii) guarantee by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) of payment for money borrowed, which default shall consist of a payment default at the stated maturity thereof, after giving effect to any applicable grace period, or shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness or accelerated indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) by the Trustee or to the Company, the Guarantor (if a Guarantee is in effect with respect to Securities of that series) 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 and requiring the Company or the Guarantor, as the case may be, (if a Guarantee is in effect with respect to Securities of that series) to cause such indebtedness or accelerated indebtedness to be discharged or cause such acceleration to be rescinded or annulled, as the case may be, and stating that such notice is a "Notice of Default" hereunder; provided, that a default shall exist under this subsection only if the aggregate principal amount outstanding under all such indebtedness that is so in default or has become due prior to the date on which it would otherwise become due and payable exceeds $40,000,000; or (f) the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $40,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or -40- (g) the entry by a court having jurisdiction in the premises of a decree or order adjudging the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) under any applicable Federal, State or foreign bankruptcy, insolvency, reorganization or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) or of any substantial part of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) property, or ordering the winding up or liquidation of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) 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 (h) the filing by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) of a petition or answer or consent seeking reorganization or relief under any applicable Federal, State or foreign bankruptcy, insolvency, reorganization or other similar 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 other similar official of the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) or of any substantial part of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) property, or the making by the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) of an assignment for the benefit of creditors, or the admission by it in writing of the Company's or the Guarantor's (if a Guarantee is in effect with respect to Securities of that series) inability to pay its debts generally as they become due, or the authorization of any such action by the Board of Directors; or (i) any Guarantee with respect to the Securities of any series ceases to be in full force and effect or the Guarantor denies in writing that it has liability under the Guarantee with respect to the Securities of such series (other than by reason of the termination of this Indenture); or (j) any other Event of Default provided with respect to Securities of that series. 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 Section 5.1(g) or (h)) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount of and all unpaid accrued interest (including any Additional Interest) and premium on all of the Securities of that series (or, if the Securities of that series are Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms of that series) to be due and payable immediately, by a notice in writing to the Company and the Guarantor (if a Guarantee is in effect with respect to Securities of that series) (and to the Trustee if given by Holders), provided, that in the case of the Securities of a series initially issued to a Trust, if, upon an Event of Default, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series fail to declare the principal of all the Outstanding Securities of such series to be immediately due and payable, the holders of at least 25% in aggregate Liquidation Amount (as defined in the related Trust -41- Agreement) of the related series of Preferred Securities issued by such Trust then outstanding shall have the right to make such declaration by a notice in writing to the Property Trustee, the Company, the Guarantor (if a Guarantee is in effect with respect to Securities of that series) and the Trustee; and upon any such declaration such principal amount (or specified portion thereof) and accrued interest (including any Additional Interest) and premium on all the Securities of such series shall become immediately due and payable; provided, that the payment of principal and interest and all other amounts due with respect to such Securities shall remain subordinated to the extent provided in Articles XIV and XV. If an Event of Default specified in Section 5.1(g) or (h) occurs, all unpaid principal of, accrued interest (including any Additional Interest) and premium on and Additional Amounts with respect to the Outstanding Securities of that series (or such lesser amount as may be provided for in the Securities of such series) shall automatically become and 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 aggregate principal amount of the Outstanding Securities of that series, by written notice to the Property Trustee (in the case of the Securities of a series initially issued to a Trust), the Company, the Guarantor (if a Guarantee is in effect with respect to Securities of that series) and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company or the Guarantor (if a Guarantee is in effect with respect to Securities of that series) has paid or deposited with the Trustee a sum sufficient to pay: (A) all overdue installments of interest (including Additional Interest) on all Securities of such series and any Additional Amounts with respect thereto, (B) the principal of and any premium on any Securities of such series that have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and any interest thereon at the rate prescribed therefor in such Securities, (C) all overdue sinking fund payments with respect to Securities of such series and interest thereon at the rate prescribed therefor in such Securities, (D) to the extent that payment of such interest is lawful, interest upon overdue installments of interest (including any Additional Interest) and Additional Amounts at the rate prescribed therefor in such Securities, and (E) 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 -42- (ii) all Events of Default with respect to Securities of that series, other than the non- payment of the principal of Securities of that series that has become due solely by such acceleration, have been cured or waived as provided in Section 5.13. (c) In the case of Securities of a series initially issued to a Trust, if the Holders of such Securities fail to annul such declaration and waive such default, the holders of not less than a majority in aggregate Liquidation Amount (as defined in the related Trust Agreement) of the related series of Preferred Securities issued by such Trust then outstanding shall also have the right to rescind and annul such declaration and its consequences by written notice to the Property Trustee, the Company, the Guarantor (if a Guarantee is in effect with respect to Securities of that series) and the Trustee, subject to the satisfaction of the conditions set forth in paragraph (b) of this Section 5.2. No such rescission shall affect any subsequent default or impair any right consequent thereon. Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. (a) The Company and the Guarantor (if a Guarantee is in effect with respect to the Securities of that series) each covenant that if: (i) default is made in the payment of any installment of interest (including any Additional Interest) on or any Additional Amounts, payable with respect to such interest, with respect to any Security of any series when such interest or Additional Amounts become due and payable and such default continues for a period of 30 days, or (ii) default is made in the payment of the principal of or any premium on any Security or any Additional Amounts with respect thereto at the Maturity thereof, or (iii) default is made in the deposit of any sinking fund payment, when and as due by the terms of a Security of any series, the Company or the Guarantor, as the case may be, will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest (including any Additional Interest) and any Additional Amounts, and, to the extent that such interest shall be legally enforceable, interest on any overdue principal, premium and interest (including Additional Interest) at the rate prescribed therefor in such Securities, and in addition thereto, all amounts owing to the Trustee, its agents and counsel under Section 6.7. (b) If the Company or the Guarantor, as the case may be, 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 the Guarantor or any other obligor upon such Security and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or the Guarantor or any other obligor upon the Security, 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 -43- such series by such appropriate judicial proceedings as the Trustee shall deem most effectual 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. In case of any judicial proceeding relative to the Company, the Guarantor or any other obligor upon the Securities, their respective property or their respective creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and 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 any amounts due the Trustee, its agents and counsel under Section 6.7. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or 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; provided, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. 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, subject to Article XIV and after provision for the payment of all the amounts owing the Trustee, its agents and counsel under Section 6.7, 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 or property collected or to be applied by the Trustee with respect to a series of Securities 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 or property on account of principal or any premium or interest (including any Additional 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, its agents and counsel under Section 6.7; SECOND: Subject to Articles XIV and XV, to the payment of the amounts then due and unpaid for principal and any premium and interest (including any Additional Interest) on the Securities in respect of -44- 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 any premium and interest (including any Additional Interest), respectively; and THIRD: The balance, if any, to the Person or Persons entitled thereto. Section 5.7. Limitation on Suits. Subject to Section 5.8, 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, assignee, trustee, liquidator, sequestrator (or other similar official) or for any other remedy hereunder, unless: (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (b) the Holders of not less than a majority in aggregate 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; (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding for 60 days; and (e) 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 aggregate 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, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other 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 such Holders. Section 5.8. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Tax Sums; Direct Action by Holders of Preferred Securities. Notwithstanding any other provision in this Indenture, the Holder of any Security of any series shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject to Sections 3.8 and 3.12) interest (including any Additional Interest) on and any Additional Tax Sums with respect to such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit against the Company or the Guarantor for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. In the case of Securities of a series initially issued to a Trust, any registered holder of the series of Preferred Securities issued by such Trust shall -45- have the right, upon the occurrence of an Event of Default described in Section 5.1(a) or (b), to institute a suit directly against the Company for enforcement of payment to such holder of principal of and any premium and (subject to Sections 3.8 and 3.12) interest (including any Additional Interest) on the Securities having a principal amount equal to the aggregate Liquidation Amount (as defined in the related Trust Agreement) of such Preferred Securities held by such holder. Section 5.9. Restoration of Rights and Remedies. If the Trustee, any Holder or any holder of Preferred Securities issued by any Trust 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, such Holder or such holder of Preferred Securities, then and in every such case the Company, the Guarantor, the Trustee, such Holders and such holder of Preferred Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee, such Holder and such holder of Preferred Securities shall continue as though no such proceeding had been instituted. Section 5.10. Rights and Remedies Cumulative. Except as otherwise provided in Section 3.7(f), no right or remedy herein conferred upon or reserved to the Trustee or 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. Section 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee, any Holder of any Securities or any holder of any Preferred Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders and the right and remedy given to the holders of Preferred Securities by Section 5.8 may be exercised from time to time, and as often as may be deemed expedient, by the Trustee, the Holders or the holders of Preferred Securities, as the case may be. Section 5.12. Control by Holders. The Holders of not less than a majority in aggregate 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: (a) such direction shall not be in conflict with any rule of law or with this Indenture, -46- (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, and (c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if a Responsible Officer or Officers of the Trustee shall, in good faith, determine that the proceeding so directed would be unjustly prejudicial to the Holders not joining in any such direction or would involve the Trustee in personal liability. Section 5.13. Waiver of Past Defaults. (a) The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series affected thereby and, in the case of any Securities of a series initially issued to a Trust, the holders of a majority in aggregate Liquidation Amount (as defined in the related Trust Agreement) of the Preferred Securities issued by such Trust may waive any past Event of Default hereunder with respect to such series and its consequences, except an Event of Default: (i) in the payment of the principal of, any premium or interest (including any Additional Interest) on or any Additional Amounts with respect to any Security of such series (unless such Event of Default has been cured and the Company or the Guarantor, if applicable, has paid to or deposited with the Trustee a sum sufficient to pay all matured installments of interest (including any Additional Interest) and all principal of, any premium on and all Additional Amounts with respect to, all Securities of that series due otherwise than by acceleration), or (ii) in respect of a covenant or provision hereof that under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. (b) Any such waiver shall be deemed to be on behalf of the Holders of all the Securities of such series or, in the case of a waiver by holders of Preferred Securities issued by such Trust, by all holders of Preferred Securities issued by such Trust. (c) Upon any such waiver, such Event of 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 Event of Default or impair any right consequent thereon. Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his or her 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, omitted or suffered 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 and expenses, 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 or the Guarantor, 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 aggregate principal amount of -47- the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of, any premium or interest (including any Additional Interest) on or any Additional Amounts with respect to any Security on or after the Stated 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 and the Guarantor each (to the extent that it may lawfully do so) covenant 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 and the Guarantor each (to the extent that it may lawfully do so) hereby expressly waive 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. The rights, immunities, duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, 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 reason able grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. 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. If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default actually known to the Trustee within 90 days after it occurs unless such default shall have been cured or waived; provided, that except in the case of a default in the payment of the principal of or any premium or interest (including any Additional Interest) on any Securities of any series or in the making of any sinking fund payment payable with respect to Securities of any series, the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interest of Holders of Securities of that series; and provided, further, that in the case of any default of the character specified in Section 5.1(d) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" 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. -48- Section 6.3. Certain Rights of Trustee. Subject to the provisions of Section 6.1: (a) the Trustee may rely and shall be protected in acting or refraining from acting in good faith upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, security or other paper or 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 or the Guarantor shall be sufficiently evidenced by a Company Request or Company Order or by a Guarantor Request or a Guarantor Order, as the case may be, and any resolution of the Board of Directors or of the Guarantor's Board of Directors shall be sufficiently evidenced by a Board Resolution or by a Guarantor Board Resolution, as the case may be; (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 or, if such matter pertains to the Guarantor, a Guarantor's 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, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that 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, security or other paper or document, but the Trustee in its discretion may make such inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, and the Guarantor, if applicable, personally or by agent or attorney; (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; (h) the Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Indenture; (i) no permissive power or authority available to the Trustee shall be construed to be a duty; and -49- (j) the Trustee shall not be charged with knowledge of any Event of Default unless either (i) a Responsible Officer of the Trustee assigned to its Corporate Trust Office shall have actual knowledge thereof or (ii) the Trustee shall have received notice thereof from the Company or a Holder; (k) in the event that the Trustee is also acting as Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar hereunder, the rights and protections afforded to the Trustee pursuant to this Article shall also be afforded such Paying Agent, Authenticating Agent, Calculation Agent or Transfer Agent and Securities Registrar. 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 Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture, or the Guarantee or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof. Section 6.5. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other agent of the Company or the Guarantor, 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 or the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Securities 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 or the Guarantor. Section 6.7. Compensation and Reimbursement. (a) The Company and the Guarantor, jointly and severally, agree: (i) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder in such amounts as the Company and the Trustee shall agree from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (ii) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and -50- counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (iii) to indemnify the Trustee and its officers, directors, agents and employees for, and to hold them harmless against, any loss, liability, damage, claim or expense (including the reasonable compensation, expenses and disbursements of its counsel and agents) incurred without negligence or bad faith, arising out of or in connection with the acceptance or administration of this trust or the performance of the Trustee's duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. (b) The Trustee shall have a lien prior to the Securities upon all property and funds held or collected by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section, except with respect to funds held in trust for the benefit of the Holders of particular Securities. (c) Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(g) or 5.1(h) occurs, the expenses (including the reasonable charges and expenses of its agents and counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal, State or foreign bankruptcy, insolvency or other similar law. (d) The obligations of the Company under this Section shall survive the satisfaction and discharge of this Indenture, the defeasance of the Securities and the earlier resignation or removal of the Trustee. Section 6.8. Conflicting Interests. (a) If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or under any other indenture with respect to securities issued by the Company or issued or guaranteed by the Guarantor. (b) The Trust Agreement and the Guarantee Agreements with respect to each Trust shall be deemed to be specifically described in this Indenture for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. Section 6.9. Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be the Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall -51- 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 with respect to the Securities of any series 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. Neither the Company nor any Person directly or indirectly controlling, controlled by or under common control with the Company shall serve as Trustee for the Securities of any series issued hereunder. 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 under Section 6.11. (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 an instrument of acceptance by a successor Trustee 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 aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Company. (d) If at any time: (i) 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 (ii) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or by any such Holder, or (iii) 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, (x) the Company, by a Board Resolution, may remove the Trustee with respect to the Securities of all series issued hereunder or (y) subject to Section 5.14, any such Holder may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to the Securities of all series issued hereunder 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 -52- a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of that or those series. If, 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 aggregate 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, become the successor Trustee with respect to the Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so 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, subject to Section 5.14, on behalf of such Holder 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 to all Holders of Securities of such series. 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 to 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 Guarantor (if a Guarantee is in effect with respect to any Securities), 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 (i) 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, (ii) 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 (iii) 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 -53- 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 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, upon payment of its charges, 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 or the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, 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 of 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, and in case any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate of authentication shall have the full force which it is provided anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have. Section 6.13. Preferential Collection of Claims Against Company or Guarantor. If and when the Trustee shall be or become a creditor of the Company or the Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or the Guarantor (or any such other obligor). Section 6.14. Appointment of Authenticating Agent. (a) The Trustee may 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 original issue (in accordance with procedures acceptable to the Trustee) and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.7, and 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 -54- 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 certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, or of 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 said supervising or examining authority, then for the purposes of this Section 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, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. (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 all or substantially all of the corporate trust business of an Authenticating Agent shall be the successor Authenticating Agent hereunder, 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. 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 appoint a successor Authenticating Agent eligible under the provisions of this Section, which shall be acceptable to the Company, and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. 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. (d) The Company and the Guarantor, jointly and severally, agree to pay to each Authenticating Agent 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 addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: -55- This is one of the Securities of the series designated therein referred to in the within mentioned Indenture. Dated: THE CHASE MANHATTAN BANK, As Trustee By: ________________________________, As Authenticating Agent By:_________________________________ Authorized Officer ARTICLE VII Holder's Lists and Reports by Trustee AND Company Section 7.1. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee: (a) 15 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record 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, in each case to the extent such information is in the possession or control of the Company and has not otherwise been received by the Trustee in its capacity as Securities Registrar. 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 Securities Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished. -56- (b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided in the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee or any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act. Section 7.3. Reports by Trustee. (a) If required by Section 3.13(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each September 15 following the date of this Indenture, deliver to the Holders a brief report, dated as of such September 15, which complies with the provisions of Section 313(a) of the Trust Indenture Act. (b) The Trustee shall transmit to Holders such other reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange or system upon which any Securities are listed or traded, with the Commission and with the Company. The Company shall notify the Trustee when any Securities are listed or traded on any securities exchange or system. Section 7.4. Reports by Company. (a) The Company shall furnish to the Holders and to prospective purchasers of Securities that are not registered under the Securities Act, upon their request, the information required to be furnished pursuant to Rule 144A(d)(4) under the Securities Act. (b) The Company and the Guarantor, if applicable, shall file with the Trustee and with the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act; provided, that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is required to be filed with the Commission. -57- ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease Section 8.1. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless: (a) if the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of the Company substantially as an entirety shall be a corporation 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 any premium and interest (including any Additional Interest) on all the Securities of every series and the performance or observance of every covenant of this Indenture and the Securities on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time, or both, would constitute an Event of Default, shall have occurred and be continuing; and (c) 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, any such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with; and the Trustee may rely upon such Officers' Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Section. Section 8.2. Successor Company Substituted. (a) Upon any consolidation of the Company with, or merger of the Company into, any other Person, or any conveyance, transfer or lease by the Company of its properties and assets substantially as an entirety to any Person in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or 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 Company shall be discharged from all obligations and covenants under this Indenture and the Securities. -58- (b) Such successor Person may cause to be executed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication pursuant to such provisions and any Securities that such successor Person thereafter shall cause to be executed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture. (c) In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form may be made in the Securities thereafter to be issued as may be appropriate. Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms. The Guarantor shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge into the Guarantor or convey, transfer or lease its properties and assets substantially as an entirety to the Guarantor, unless: (a) if the Guarantor shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Guarantor is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of the Guarantor substantially as an entirety shall be a corporation existing under the laws of the United States of America, any State thereof, the District of Columbia or Bermuda 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 Guarantee with respect to each Guaranteed Security and the performance or observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time, or both, would constitute an Event of Default, shall have occurred and be continuing; and (c) the Guarantor has delivered to the Trustee a Guarantor's 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, any such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with; and the Trustee may rely upon such Guarantor's Officers' Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Section. -59- Section 8.4. Successor Guarantor Substituted. (a) Upon any consolidation of the Guarantor with, or merger of the Guarantor into, any other Person, or any conveyance, transfer or lease by the Guarantor of its properties and assets substantially as an entirety to any Person in accordance with Section 8.3, the successor Person formed by such consolidation or into which the Guarantor is merged or 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 Guarantor under this Indenture with the same effect as if such successor Person had been named as the Guarantor; and thereafter, except in the case of a lease, the Guarantor shall be discharged from all obligations and covenants under this Indenture, the Guarantee and the Securities. (b) Such successor Person may cause to be executed, and may issue either in its own name or in the name of the Guarantor, any or all of the Guarantees issuable hereunder that theretofore shall not have been signed by the Guarantor and delivered to the Trustee; and, upon the order of such successor Person instead of the Guarantor and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall deliver any Guarantees that previously shall have been signed and delivered by the officers of the Guarantor to the Trustee pursuant to such provisions and any Guarantees that such successor Person thereafter shall cause to be executed and delivered to the Trustee on its behalf for the purpose pursuant to such provisions. All the Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore or thereafter issued in accordance with the terms of this Indenture. (c) In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form may be made in the Securities and Guarantees thereafter to be issued as may be appropriate. 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, the Guarantor (if the Securities established or affected by such supplemental indenture are Guaranteed Securities), when authorized by a Guarantor Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (a) to establish the form or terms of Securities of any series as permitted by Sections 2.1 or 3.1 or to establish the form of a Guarantee with respect to the Securities of any series as permitted by Section 2.5; or (b) to evidence the succession of another Person to the Company or the Guarantor, if applicable and the assumption by any such successor of the covenants of the Company or the Guarantor, if applicable, herein and in the Securities or the Guarantee; or -60- (c) to add to the covenants of the Company or the Guarantor 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 the Guarantor; or (d) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or (e) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided, that any such addition, change or elimination shall (i) become effective only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision or (ii) shall not apply to any Outstanding Securities; or (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or (g) to cure any ambiguity, to correct or supplement any provision herein that 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, that such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect or, in the case of the Securities of a series initially issued to a Trust and for so long as any of the corresponding series of Preferred Securities issued by such Trust shall remain outstanding, the holders of such Preferred Securities; or (h) to comply with the requirements of the Commission in order to effect or maintain qualification of this Indenture under the Trust Indenture Act. Section 9.2. Supplemental Indentures With Consent of Holders. (a) With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of such Holders delivered to the Company, the Guarantor (if such affected Securities are Guaranteed Securities) and the Trustee, the Company, by a Board Resolution, the Guarantor, by a Guarantor Board Resolution, and the Trustee 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 modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of each series affected thereby, -61- (i) change the Stated Maturity of the principal of, any premium or any installment of interest (including any Additional Interest) on or any Additional Amounts with respect to any Security, or reduce the principal amount of any Security or the rate of interest thereon or any Additional Amounts with respect to or any premium payable upon the redemption thereof or otherwise, or reduce the principal amount of a Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, modify the calculation of the rate of interest on any Security or change the date on which any Security may be redeemed or change the Place of Payment where, or the coin or currency in which, any Guarantee or any Security or any premium or interest thereon or any Additional Amount with respect thereto is payable, or impair the right to institute suit for the enforcement of any payment on or with respect to any Securities on or after the Stated Maturity thereof or, in the case of redemption, on or after the Redemption Date, or (ii) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series, the consent of whose Holders is required to enter into any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with any provisions of this Indenture or any default hereunder and their consequences provided for in this Indenture, or (iii) modify any of the provisions of this Section, Section 5.13 or Section 10.9, 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 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 and Section 10.9, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.1(f), or (iv) modify any of the provisions of this Indenture relating to the subordination of the Securities or the Guarantee, if applicable, in a manner that would adversely affect the interests of any Holder of Securities of that series, or (v) if the Securities are Guaranteed Securities, reduce any amount payable under, delay or defer the required time of payment under, or impair the right to institute suit to enforce any payment under the Guarantee, or (vi) modify the terms of the Guarantee contained in Article XV in any manner adverse to the Holders. provided, that, in the case of the Securities of a series initially issued to a Trust, so long as any of the corresponding series of Preferred Securities issued by such Trust remains outstanding, (x) no such amendment shall be made that adversely affects the holders of such Preferred Securities in any material respect, and no termination of this Indenture shall occur, and no waiver of any Event of Default or compliance with any covenant under this Indenture shall be effective, without the prior consent of the holders of at least a majority of the aggregate Liquidation Amount (as defined in the related Trust Agreement) of such Preferred Securities then outstanding unless and until the principal of and any premium on the Securities of such series and all accrued and (subject to Section 3.12) unpaid interest (including any Additional Interest) thereon and all -62- Additional Amounts with respect thereto have been paid in full and (y) no amendment shall be made to Section 5.8 of this Indenture that would impair the rights of the holders of Preferred Securities issued by any Trust provided therein without the prior consent of the holders of each such Preferred Security then outstanding unless and until the principal of and any premium on the Securities of such series and all accrued and (subject to Section 3.12) unpaid interest (including any Additional Interest) thereon have been paid in full. (b) A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Securities or any corresponding series of Preferred Securities of a Trust that holds the Securities of any series, or that modifies the rights of the Holders of Securities of such series or holders of such Preferred Securities of such corresponding 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 or holders of Preferred Securities of any other such corresponding 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. 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 shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties, responsibilities or immunities 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. -63- Section 9.6. Reference in Securities to Supplemental Indentures. Securities of any series 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 Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series with, if applicable, a Guarantee endorsed thereon duly executed by the Guarantor. ARTICLE X Covenants Section 10.1. Payment of Principal, Premium and Interest The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest (including any Additional Interest) on the Securities of that series in accordance with the terms of such Securities and this Indenture. Section 10.2. Maintenance of Office or Agency. (a) The Company and the Guarantor will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series and the related Guarantee 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 or the Guarantor in respect of the Securities of that series, the related Guarantee and this Indenture may be served. The Company and the Guarantor initially appoint the Trustee, acting through its Corporate Trust Office, as its agent for such purposes. The Company or the Guarantor will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company or the Guarantor shall fail to maintain such 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 and the Guarantor hereby appoint the Trustee as their agent to receive all such presentations, surrenders, notices and demands. (b) The Company or the Guarantor may also from time to time designate one or more other offices or agencies where the Securities of one or more series and the related Guarantee may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided, that no such designation or rescission shall in any manner relieve the Company or the Guarantor of their obligations to maintain an office or agency in each Place of Payment for Securities of any series and the related Guarantee for such purposes. The Company or the Guarantor will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such office or agency. -64- Section 10.3. Money for Security Payments to be Held in Trust. (a) If the Company shall at any time act as its own Paying Agent or if the Guarantor shall act as Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of and premium or interest (including any Additional Interest) on any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium or interest (including any Additional 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 in writing of its failure so to act. If the Guarantor shall at any time act as its own Paying Agent with respect to the Guarantee, it will, on or before each date on which amounts payable under the Guarantee are due and payable, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay all amounts then due and payable under the Guarantee until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee in writing of its action or failure so to act (b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to 10:00 a.m., New York City time, on each due date of the principal of or any premium or interest (including any Additional Interest) on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act. Whenever the Guarantor shall have one or more Paying Agents for the Guarantee of any Guaranteed Security, it will, prior to 10:00 a.m., New York City time, on each date that amounts are due under such Guarantee, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act and (unless such Paying Agent is the Trustee) the Guarantor will promptly notify the Trustee in writing of its action or failure to so act. (c) The Company will cause each Paying Agent for any series of Securities other than the Trustee or the Guarantor and the Guarantor will cause each Paying Agent for the Guarantee other than the Trustee 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 (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series. (d) The Company or the Guarantor 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 or Guarantor Order, as the case may be, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company, the Guarantor 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, the Guarantor 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. -65- (e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company or the Guarantor in trust for the payment of the principal of and any premium or interest (including any Additional Interest) on any Security and remaining unclaimed for two years after such principal and any premium or interest has become due and payable shall (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be paid on Company Request to the Company (or, if deposited by the Guarantor, paid on Guarantor Request to the Guarantor), or (if then held by the Company or the Guarantor) shall (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company and the Guarantor, if applicable, 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; provided, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company or the Guarantor, if applicable, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or the Guarantor, if applicable. Section 10.4. Statement by Officers as to Compliance. The Company shall 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 (one of the signatories to which shall be the principal financial officer, principal executive officer or principal accounting officer of the Company) covering the preceding fiscal year, stating whether or not to the knowledge of the signers thereof the Company is in default in the performance or observance with any of the terms, provisions, covenants and conditions of this Indenture (without regard to any grace period or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. Section 10.5. Statement by Guarantor's Officers as to Compliance. The Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Guarantor ending after the date hereof, a Guarantor's Officers' Certificate (one of the signatories to which shall be the principal financial officer, principal executive officer or principal accounting officer of the Guarantor) covering the preceding fiscal year, stating whether or not to the knowledge of the signers thereof the Guarantor is in default in the performance or observance with any of the terms, provisions, covenants and conditions of this Indenture (without regard to any grace period or requirement of notice provided hereunder) and, if the Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. -66- Section 10.6. Original Issue Discount. For each year during which any Discount Securities are Outstanding, the Company shall furnish to each Paying Agent in a timely fashion such information as may be reasonably requested by each Paying Agent in order that each Paying Agent may prepare the information which it is required to report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such information shall include the amount of original issue discount includible in income for each $25 of principal amount at Stated Maturity of outstanding Securities during such year. Section 10.7. Additional Tax Sums. In the case of the Securities of a series initially issued to a Trust, so long as no Event of Default has occurred and is continuing and except as otherwise specified as contemplated by Section 2.1 or Section 3.1, if (a) a Trust is the Holder of all of the Outstanding Securities of such series and (b) a Tax Event described in clause (i) or (iii) in the definition of Tax Event in Section 1.1 has occurred and is continuing in respect of such Trust, the Company shall pay to such Trust (and its permitted successors or assigns under the related Trust Agreement) for so long as such Trust (or its permitted successor or assignee) is the registered holder of the Outstanding Securities of such series, such additional amounts as may be necessary in order that the amount of Distributions then due and payable by such Trust on the related Preferred Securities and Common Securities that at any time remain outstanding in accordance with the terms thereof shall not be reduced as a result of any Additional Taxes arising from such Tax Event (the "Additional Tax Sums"). Whenever in this Indenture or the Securities there is a reference in any context to the payment of principal of or interest on the Securities, such mention shall be deemed to include mention of the payments of the Additional Tax Sums provided for in this Section to the extent that, in such context, Additional Tax Sums are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Tax Sums (if applicable) in any provisions hereof shall not be construed as excluding Additional Tax Sums in those provisions hereof where such express mention is not made; provided, that the deferral of the payment of interest pursuant to Section 3.12 on the Securities shall not defer the payment of any Additional Tax Sums that may be due and payable. Section 10.8. Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the capital stock of the Company or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the capital stock of the Company (or any capital stock of a Subsidiary of the Company), for any class or series of the capital stock of the Company or of any class or series of the indebtedness of the Company for any class -67- or series of the capital stock of the Company, (C) the purchase of fractional interests in shares of the capital stock of the Company pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock), if at such time the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. (b) The Company also covenants with each Holder of Securities of a series initially issued to a Trust (i) to hold, directly or indirectly, 100% of the Common Securities of such Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily terminate, wind-up or liquidate such Trust other than (A) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of such Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of such Trust Agreement, to cause such Trust to continue not to be taxable as a corporation for United States Federal income tax purposes. Section 10.9. Waiver of Certain Covenants. Subject to the rights of holders of Preferred Securities specified in Section 9.2, if any, and except as otherwise specified as contemplated by Section 3.1 for Securities of such series, the Company or the Guarantor, if applicable, may, with respect to the Securities of any series, omit in any particular instance to comply with any covenant in Section 10.8 or provided pursuant to Section 3.1 or Section 9.1(a) or (c) for the benefit of the holders of such series, if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant, but no such waiver shall extend to or affect such covenant except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company or the Guarantor, if applicable, in respect of any such covenant shall remain in full force and effect. ARTICLE XI Redemption Of Securities Section 11.1. Applicability of Article. Securities of any series that 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 such Securities) in accordance with this Article. -68- 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 or in another manner specified as contemplated by Section 3.1 for such Securities. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing and, in the case of Securities of a series held by a Trust, the Property Trustee under the related Trust Agreement, of the Redemption Date and of the principal amount of Securities of the applicable series to be redeemed; provided, that in the case of any series of Securities initially issued to a Trust, for so long as such Securities are held by such Trust, such notice shall be given not less than 45 nor more than 75 days prior to such Redemption Date (unless a shorter notice shall be satisfactory to the Property Trustee under the related Trust Agreement). In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company that is subject to a condition specified 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 or condition. Section 11.3. Selection of Securities to be Redeemed. (a) If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided, that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. (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. 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 Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed. (c) The provisions of paragraphs (a) and (b) of this Section shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. Section 11.4. Notice of Redemption. (a) Notice of redemption shall be given not less than 30 days nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, provided, that in the case of any series of Securities initially issued to a Trust, for so long as such Securities are held by such Trust, such notice shall -69- be given not less than 45 nor more than 75 days prior to such Redemption Date (unless a shorter notice shall be satisfactory to the Property Trustee under the related Trust Agreement). (b) With respect to Securities of each series to be redeemed, each notice of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price, as calculated by the Company, together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the day provided by the terms of such Securities (and if an estimate is provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated); (iii) if less than all Outstanding Securities of such series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed; (iv) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that any interest (including any Additional Interest) thereon shall cease to accrue on and after said date; (v) the place or places where such Securities are to be surrendered for payment of the Redemption Price; (vi) that the redemption is for a sinking fund, if such is the case; and (vii) such other provisions as may be required in respect of the terms of such Securities. (c) Unless otherwise specified with respect to any Securities in accordance with Section 3.1, with respect to any redemption of Securities at the election of the Company, unless, upon the giving of notice of such redemption, Defeasance shall have been effected with respect to such Securities pursuant to Section 13.2, such notice may state that such redemption shall be conditional upon the receipt by the Trustee or the Paying Agent for such Securities, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of and any premium and interest (including any Additional Interest) on such Securities and that if such money shall not have been so received such notice shall be of no force or effect and the Company shall not be required to redeem such Securities. In the event such notice of redemption contains such a condition and such money is not so received, the redemption shall not be made and within a reasonable time thereafter notice shall be given, in the same manner in which the notice of redemption was given, that such money was not so received and such redemption was not required to be made, and the Trustee or Paying Agent for the Securities otherwise to have been redeemed shall promptly return to the Holders thereof any of such Securities that had been surrendered for payment upon such redemption. (d) 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 -70- and, subject to paragraph (c) of this Section, shall be irrevocable. The notice if mailed in the manner provided above shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security. Section 11.5. Deposit of Redemption Price. Prior to 10:00 a.m., New York City time, on any Redemption Date, the Company or the Guarantor, if applicable, will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent or if the Guarantor is acting as Paying Agent with respect to such Securities or if the Guarantor is acting as its own Paying Agent with respect to the related Guarantee, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and any accrued interest (including any Additional Interest) on all the Securities (or portions thereof) that are to be redeemed on that date. Section 11.6. Payment of Securities Called for Redemption. (a) Except as provided in Section 11.4(c), after notice of redemption has been given, the Securities to be redeemed shall become due and payable on the Redemption Date at the place or places stated in such notice at the Redemption Price, together with accrued interest (including any Additional Interest) to the Redemption Date. Upon surrender of such Securities at a Place of Payment specified in such notice, such Securities shall be paid and redeemed by the Company at the Redemption Price, together with accrued interest (including any Additional Interest) to the Redemption Date; provided, that, unless otherwise specified as contemplated by Section 3.1, installments of interest (including any Additional Interest) whose Stated Maturity is on or prior to the Redemption Date will 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 3.8. (b) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal of and any premium on such Security shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. Section 11.7. Securities Redeemed in Part. Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented and having the same Original Issue Date, Stated Maturity and terms with, if applicable, a Guarantee endorsed thereon, duly executed by the Guarantor. -71- Section 11.8. Right of Redemption of Securities Initially Issued to a Trust. (a) In the case of the Securities of a series initially issued to a Trust, except as otherwise specified as contemplated by Section 3.1, the Company, at its option, may redeem such Securities (i) on or after the date specified in such Security, in whole at any time or in part from time to time, or (ii) upon the occurrence and during the continuation of a Tax Event or an Investment Company Event, at any time within 90 days following the occurrence and during the continuation of such Tax Event or Investment Company Event, in whole (but not in part), in each case at a Redemption Price specified in such Security, together with accrued interest (including any Additional Interest) to the Redemption Date. (b) If less than all the Securities of any such series are to be redeemed, the aggregate principal amount of such Securities remaining Outstanding after giving effect to such redemption shall be sufficient to satisfy any provisions of the Trust Agreement related to the Trust to which such Securities were issued, including any requirement in such Trust Agreement as to the minimum Liquidation Amount (as defined in such Trust Agreement) of Preferred Securities that may be held by a holder of Preferred Securities thereunder. ARTICLE XII Sinking Funds Section 12.1. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.1 for such Securities. The minimum amount of any sinking fund payment provided for by the terms of any Securities of any series is herein referred to as a "mandatory sinking fund payment", and any sinking fund payment in excess of such minimum amount that is permitted to be made by the terms of such Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of any 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 such Securities. Section 12.2. Satisfaction of Sinking Fund Payments with Securities. In lieu of making all or any part of a mandatory sinking fund payment with respect to any Securities of a series in cash, the Company or the Guarantor, if applicable, may at its option, at any time no more than 16 months and no less than 60 days prior to the date on which such sinking fund payment is due, deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired by the Company, except Securities of such series that have been redeemed through the application of mandatory or optional sinking fund payments pursuant to the terms of the Securities of such series, accompanied by a Company Order instructing the Trustee to credit such obligations and stating that the Securities of such series were originally issued by the Company by way of bona fide sale or other negotiation for value; provided, that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price for such Securities, as specified in the -72- Securities so to be redeemed, 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. (a) Not less than 60 days prior 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 such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash in the currency in which the Securities of such series are payable (except as provided pursuant to Section 3.1) and the portion thereof, if any, that is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and stating the basis for such credit and that such Securities have not been previously so credited, and will also deliver to the Trustee any Securities to be so delivered. Such Officers' Certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the succeeding sinking fund payment date. In the case of the failure of the Company to deliver such Officers' Certificate (or, as required by this Indenture, the Securities specified in such Officers' Certificate) by the due date therefor, the sinking fund payment due on the succeeding sinking fund payment date for such series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the Securities of such series subject to a mandatory sinking fund payment without the right to deliver or credit securities as provided in Section 12.2 and without the right to make the optional sinking fund payment with respect to such series at such time. (b) Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made with respect to the Securities of any particular series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent or by the Guarantor if the Guarantor is acting as Paying Agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date immediately following the date of such payment) to the redemption of Securities of such series at the Redemption Price specified in such Securities with respect to the sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee (or, if the Company is acting as its own Paying Agent or the Guarantor is acting as Paying Agent segregated and held in trust by the Company or the Guarantor, as the case may be, as provided in Section 10.3) for such series and together with such payment (or such amount so segregated) shall be applied in accordance with the provisions of this Section 12.3. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee (or if the Company is acting as its own Paying Agent, segregated and held in trust as provided in Section 10.3) on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities of such series shall be applied by the Trustee (or by the Company if the Company is acting as its own Paying Agent or by the Guarantor if the Guarantor is acting as Paying Agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity. 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 or the Guarantor, if applicable, 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 Section 11.6. On or before each sinking fund payment date, the Company or the Guarantor, if applicable, shall pay to the Trustee (or, if the Company is acting as its own Paying Agent or if the Guarantor is acting as Paying Agent, segregate and hold -73- in trust as provided in Section 10.3) in cash a sum in the currency in which Securities of such series are payable (except as provided pursuant to Section 3.1) equal to the principal and any premium and interest (including any Additional Interest) accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 12.3. (c) Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to the Securities of such series, except that if the notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee, the Company (if the Company is then acting as its own Paying Agent) or the Guarantor (if the Guarantor is then acting as Paying Agent) shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company or the Guarantor, as the case may be,) for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of the Securities of such series; provided, that in case such default or Event of Default shall have been cured or waived herein, such moneys shall thereafter be applied on the next sinking fund payment date for the Securities of such series on which such moneys may be applied pursuant to the provisions of this Section 12.3. ARTICLE XIII Defeasance And Covenant Defeasance Section 13.1. Company's Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option at any time, to have Section 13.2 or Section 13.3 applied to any Securities or any series of Securities designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2 or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon compliance with the conditions set forth below in this Article. Section 13.2. Defeasance and Discharge. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company and the Guarantor, if applicable, shall be deemed to have been discharged from its obligations with respect to such Securities and under the Guarantee in respect thereof as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company and the Guarantor, if applicable, shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and under the Guarantee in respect thereof and to have satisfied all its other obligations under such Securities and under the Guarantee in respect thereof, and this Indenture insofar as such Securities and such Guarantee are concerned (and the Trustee, at the expense of the Company or the Guarantor, if applicable, shall execute proper instruments acknowledging the same), subject to the following which shall -74- survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest (including Additional Interest) on such Securities when payments are due, (b) the Company's and, if applicable, the Guarantor's obligations with respect to such Securities under Sections 3.6, 3.7, 10.2 and 10.3, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) the provisions of this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.3 applied to such Securities. Section 13.3. Covenant Defeasance. Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (a) the Company and the Guarantor, if applicable, shall be released from its obligations under Sections 8.1, 8.3 and 10.8 and any covenants provided pursuant to Section 3.1(n) or Section 9.1(a) or (c) for the benefit of the Holders of such Securities and (b) the occurrence of any event specified in Section 5.1(d) (with respect to any of Section 8.1 or 10.8 and any covenants provided pursuant to Section 3.1(n) or Section 9.1(a) or (c)), Section 5.1(e), (f) or (j) or Section 9.1(d) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company and the Guarantor, if applicable, may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, 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. Notwithstanding anything herein to the contrary, no Covenant Defeasance shall release any successor Person referred to in Article VIII from its obligations to assume the obligations of the Company and the Guarantor, as applicable, under Section 6.7 as a condition to the consummation of any transaction contemplated by Section 8.1 or 8.3, as applicable. Section 13.4. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of Securities, as the case may be: (a) The Company or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9 and agrees to comply with the provisions of this Article 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, (i) money in an amount or (ii) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount or (iii) a combination thereof, in each case 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 any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest -75- on such Securities on the respective Stated Maturities or Redemption Dates in accordance with the terms of this Indenture and such Securities. (b) In the event of an election to have Section 13.2 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. (c) In the event of an election to have Section 13.3 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. (d) The Company shall have delivered to the Trustee an Officers' Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. (e) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Section 5.1 (g) and (h), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act). (g) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder. (h) If the money and/or Government Obligations deposited in trust pursuant to this Section are sufficient to pay and discharge such Securities on a Redemption Date, then at or prior to the time of such deposit, either notice of such redemption shall have been given in accordance with Section 11.4 or the Company shall have irrevocably instructed the Trustee to give such notice of -76- redemption and arrangements satisfactory to the Trustee for the giving of such notice by the Trustee in the name, and at the expense, of the Company shall have been made. (i) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with. Section 13.5. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions. (a) Subject to the provisions of paragraph (e) of Section 10.3, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.6, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 13.4 in respect of any Securities 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 such Paying Agent (including the Company acting as its own Paying Agent or the Guarantor acting as the 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 principal and any premium, interest and Additional Amounts, but money so held in trust need not be segregated from other funds except to the extent required by law. Moneys held by the Trustee under this Section shall not be subject to the claims of the holders of Company Senior Debt under Article XIV or Guarantor Senior Debt under Article XV. (b) The Company and the Guarantor, jointly and severally, agree to pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the 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 Outstanding Securities. (c) Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon a Company Request (or, if deposited by the Guarantor, to the Guarantor from time to time upon a Guarantor Request) any money or Government Obligations held by it as provided in Section 13.4 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities. Section 13.6. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture, such Securities and the Guarantee from which the Company and the Guarantor, if applicable, have been discharged or released pursuant to Section 13.2 or 13.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.5 with respect to such Securities in accordance with this Article; provided, that if the Company or the Guarantor makes any payment of -77- principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company or the Guarantor, as the case may be, shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust. Section 13.7. Qualifying Trustee. Any trustee appointed pursuant to Section 13.4 for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related Defeasance or Covenant Defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee. ARTICLE XIV Subordination of Securities Section 14.1. Securities Subordinate to Company Senior Debt. The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the payment of the principal of, any premium and interest (including any Additional Interest) on each and all of the Securities of each and every series are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Company Senior Debt. Section 14.2. No Payment When Company Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc. (a) If the Company shall default in the payment of any principal of or any premium or interest on any Company Senior Debt when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Company Senior Debt or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or any premium or interest (including any Additional Interest) on any of the Securities, or in respect of any redemption, repayment, retirement, purchase or other acquisition of any of the Securities. (b) In the event of any Proceeding with respect to the Company, all Company Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other company provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Company -78- Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Company Senior Debt in accordance with the priorities then existing among such holders until all Company Senior Debt (including any interest thereon accruing after the commencement of any Proceeding) shall have been paid in full. (c) In the event of any Proceeding, after payment in full of all sums owing with respect to Company Senior Debt, the Holders of the Securities, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of and any premium and interest on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other company provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Company Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment) shall be received by the Trustee or any Holder in contravention of any of the terms hereof and before all Company Senior Debt shall have been paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Company Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Company Senior Debt remaining unpaid, to the extent necessary to pay all such Company Senior Debt in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Company Senior Debt is hereby irrevocably authorized to endorse or assign the same. (d) The Trustee and the Holders, at the expense of the Company, shall take such reasonable action (including the delivery of this Indenture to an agent for the holders of Company Senior Debt or consent to the filing of a financing statement with respect hereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Company Senior Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions. (e) The provisions of this Section 14.2 shall not impair any rights, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. (f) The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or ranking junior to the Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Securities or ranking junior to the Securities. -79- Section 14.3. Payment Permitted If No Default. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company, at any time, except during the pendency of the conditions described in paragraph (a) of Section 14.2 or of any Proceeding referred to in Section 14.2, from making payments at any time of principal of and any premium or interest (including any Additional Interest) on the Securities or (b) the application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal of and any premium or interest (including any Additional Interest) on the Securities or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in accordance with Section 14.8) that such payment would have been prohibited by the provisions of this Article, except as provided in Section 14.8. Section 14.4. Subrogation to Rights of Holders of Company Senior Debt. Subject to the payment in full of all amounts due or to become due on all Company Senior Debt, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Company Senior Debt, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Company Senior Debt pursuant to the provisions of this Article (equally and ratably with the holders of all indebtedness of the Company that by its express terms is subordinated to Company Senior Debt of the Company to substantially the same extent as the Securities are subordinated to the Company Senior Debt and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Company Senior Debt) to the rights of the holders of such Company Senior Debt to receive payments and distributions of cash, property and securities applicable to the Company Senior Debt until the principal of and any premium and interest (including any Additional Interest) on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Company Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments made pursuant to the provisions of this Article to the holders of Company Senior Debt by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Company Senior Debt, and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Company Senior Debt. Section 14.5. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Company Senior Debt on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the Holders of the Securities, the obligations of the Company, which are absolute and unconditional, to pay to the Holders of the Securities the principal of, any premium and interest (including any Additional Interest) on the Securities as and when the same shall become due and payable in accordance with their terms, (b) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than their rights in relation to the holders of Company Senior Debt or (c) prevent the Trustee or the Holder of any Security (or to the extent expressly provided herein, the holder of any Preferred Security) from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, including filing and voting claims in any Proceeding, subject to the -80- rights, if any, under this Article of the holders of Company Senior Debt to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. Section 14.6. Trustee to Effectuate Subordination. Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in this Article and appoints the Trustee his or her attorney-in- fact for any and all such purposes. Section 14.7. No Waiver of Subordination Provisions. (a) No right of any present or future holder of any Company Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise charged with. (b) Without in any way limiting the generality of the paragraph (a) of this Section, the holders of Company Senior Debt may, at any time and from to time, without the consent of or notice to the Trustee or the Holders of the Securities of any series, without incurring responsibility to such Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of such Holders of the Securities to the holders of Company Senior Debt, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Company Senior Debt, or otherwise amend or supplement in any manner Company Senior Debt or any instrument evidencing the same or any agreement under which Company Senior Debt is outstanding, (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Company Debt, (iii) release any Person liable in any manner for the collection of Company Senior Debt and (iv) exercise or refrain from exercising any rights against the Company and any other Person. Section 14.8. Notice to Trustee. (a) The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company that would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Company or a holder of Company Senior Debt or from any trustee, agent or representative therefor; provided, that if the Trustee shall not have received the notice provided for in this Section at least two Business Days prior to the date upon which by the terms hereof any monies may become payable for any purpose (including, the payment of the principal of and any premium or interest (including any Additional Interest) on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. -81- (b) The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or herself to be a holder of Company Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor) to establish that such notice has been given by a holder of Company Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Company Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Company Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 14.9. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Company Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. Section 14.10. Trustee Not Fiduciary for Holders of Company Senior Debt. The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any fiduciary duty to the holders of Company Senior Debt and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Company Senior Debt shall be entitled by virtue of this Article or otherwise. Section 14.11. Rights of Trustee as Holder of Company Senior Debt; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Company Senior Debt that may at any time be held by it, to the same extent as any other holder of Company Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Section 14.12. Article Applicable to Paying Agents. If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of -82- the Trustee, provided, that Sections 14.8 and 14.11 shall not apply to the Company or any Affiliate of the Company if the Company or such Affiliate acts as Paying Agent. ARTICLE XV Guarantee and Indemnity Section 15.1. Applicability of Article. Securities of any series which are to be Guaranteed Securities shall be subject to the provisions of this Article XV. Section 15.2. The Guarantee. The Guarantor hereby agrees to unconditionally and irrevocably guarantee (the form of such guarantee to be established as provided in Section 2.5) to each Holder of a Security authenticated and delivered by the Trustee (a) the due and punctual payment of the principal of, any premium and interest and all other amounts on, or in respect of, on and, if applicable, any Additional Tax Sums with respect to such Security and the due and punctual payment of the sinking fund payments (if any) provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, redemption, repayment or otherwise, in accordance with the terms of such Security and of this Indenture and (b) the full and punctual performance within the applicable grace periods of all other obligations of the Company under this Indenture and the Securities. In case of the failure of the Company punctually to pay any such principal, premium, interest (including any Additional Interest), Additional Tax Sums or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at Stated Maturity, upon acceleration, redemption, repayment or otherwise, and as if such payment were made by the Company. In case of the failure of the Company to perform any other obligation of the Company to the Holders of Securities of any series, for whatever reason, the Guarantor shall be obligated to perform or cause the performance of the same immediately. An Event of Default under this Indenture or the Securities of any series shall constitute an event of default under this Guarantee, and shall entitle the Holders of Securities of such series to accelerate the obligations of the Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. The Trustee is entitled to enforce this Guarantee in accordance with the provisions of Article VI. Section 15.3. Additional Amounts. All payments under the Guarantee shall be made by the Guarantor without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which the Guarantor is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations -83- or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If any withholding or deduction at source is required, the Guarantor shall, subject to the limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment under the Guarantee made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in the Guarantee and this Indenture to be then due and payable (the "Additional Amounts"); provided, that the Guarantor shall not be required to make payment of such Additional Amounts for or on account of: (1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder or the beneficial owner of such Security (other than a Trust): (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent relevant taxing jurisdiction or any political subdivision thereof or therein or otherwise had some connection with the relevant taxing jurisdiction other than by reason of the mere ownership of, or receipt of payment under, such Security or the Guarantee; (B) presented the related Security for payment in the relevant taxing jurisdiction or any political subdivision thereof or therein, unless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than thirty (30) days after the date on which the payment in respect of such Security first became due and payable, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts if it had presented such Security for payment on any day within such period of thirty (30) days; (2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or (3) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of such Security (other than a Trust) to comply, within 90 days, with any reasonable request by the Guarantor addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; nor shall Additional Amounts be paid with respect to any payment under the Guarantee to any Holder where the beneficial owner of the related Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or partner of -84- such partnership who would not have been entitled to such Additional Amounts had it been the Holder of the Security. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series or the related Guarantee, at least 10 days prior to the first Interest Payment Date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below mentioned Guarantor's Officer's Certificate, the Guarantor shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, a Guarantor's Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section 15.3. If any such withholding shall be required, then such Guarantor's Officer's Certificate shall specify by jurisdiction in which the Holders are resident for tax purposes the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Guarantor agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by this Section 15.3. The Guarantor covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Guarantor's Officer's Certificate furnished pursuant to this Section 15.3. Section 15.4 Guarantee Unconditional, etc. The Guarantor hereby agrees that its obligations hereunder shall be as principal, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security, this Indenture or the obligations of the Company or any other guarantor to the Holder or the Trustee hereunder, any failure to enforce the provisions of any Security or this Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Company or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, any premium and interest on and sinking fund payments -85- required with respect to, the Securities and the complete performance of all other obligations contained in the Securities, this Indenture and the Guarantee. This Guarantee is a guarantee of payment and not of collection. The Guarantor further agrees, to the fullest extent that it lawfully may do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 5.2 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or prohibition extant under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction preventing such acceleration in respect of the obligations guaranteed hereby (in accordance with procedures acceptable to the Trustee), and (2) in the event of any acceleration of such obligations as provided in Article V, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Securities or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by the Guarantor of its liabilities and obligations under this Guarantee or under this Indenture. This Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities of the relevant series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. Section 15.5. Execution of Guarantee. To evidence its guarantee specified in this Article XV to the Holders of any Security of any series, the Guarantor hereby agrees to execute the Guarantee, in substantially the form set forth in Section 15.6 (except as otherwise permitted by Section 2.5) to be endorsed on each Security of such series authenticated and delivered by the Trustee. Such Guarantee shall be executed on behalf of the Guarantor by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents 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. A Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Guarantor shall bind the Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Guarantee or did not hold such offices at the date of such Guarantee. If the form of the Guarantee of the series has been established in or pursuant to one or more Guarantor Board Resolutions as permitted by Section 2.5, in authenticating the Securities on which such Guarantee is endorsed, and accepting the additional responsibilities under this Indenture in relation to such Guarantee, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating, -86- (a) if the form of such Guarantee has been established by or pursuant to Guarantor Board Resolution as permitted by Section 2.5, that such form has been established in conformity with the provisions of this Indenture; (b) that the Guarantee, when the Securities on which the Guarantee has been endorsed have been authenticated and delivered by the Trustee and the Guarantee has been issued by the Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and (c) that all laws and requirements in respect of the execution and delivery by the Guarantor of such Guarantee have been complied with. If such form has been so established for such Guarantee, the Trustee shall not be required to authenticate the Securities on which such Guarantee is endorsed if the issue of such Guarantee pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities, the Guarantee and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. A Guarantee shall not be valid or become obligatory for any purpose with respect to a Security of any series until there appears on such Security a certificate of authentication substantially in the form provided for herein, executed by the Trustee by manual signature of an authorized officer, and such certificate upon any such Security shall be conclusive evidence, and the only evidence, that such Guarantee has been duly delivered hereunder. Section 15.6. Form of Guarantee. FOR VALUE RECEIVED, MUTUAL RISK MANAGEMENT LTD., a Bermuda corporation (the "Guarantor," which term includes any successor guarantor under the Indenture referred to in the Security upon which this Guarantee is endorsed (the "Indenture")), hereby guarantees to the holder of the Security upon which this Guarantee is endorsed the due and punctual payment of the principal of, any premium and interest (including any Additional Interest) on, and, if applicable, any Additional Tax Sums with respect to such Security and the due and punctual payment of the sinking fund payments (if any) provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, redemption, repayment or otherwise and the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture and such Security. The Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to said Security or the indebtedness evidenced thereby and all demands whatsoever and covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in this Guarantee. -87- The indebtedness evidenced by this Guarantee is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Guarantor Senior Debt, and this Guarantee is issued subject to the provisions of the Indenture with respect thereto. Each Holder of the Security on which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance of the Security on which this Guarantee is endorsed, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Guarantor Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. This Guarantee constitutes a guarantee of payment and not of collection and ranks equally and ratably with all other unsecured and unsubordinated obligations of the Guarantor. The Guarantor hereby certifies and warrants that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this Guarantee, and to constitute the same the legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms have been done and performed and have happened in compliance with all applicable laws. This Guarantee is dated the date of the Security upon which it is endorsed. All capitalized terms used in this Guarantee but not defined herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture. The terms of this Guarantee include those stated in the Indenture. This Guarantee is subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. -88- IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed. MUTUAL RISK MANAGEMENT LTD. By_________________________________ Name: Title: ------------------------------------ Section 15.7. Subrogation. The Guarantor shall be subrogated to all rights of the Holder of any Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of a Guarantee; provided, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, any premium and interest (including any Additional Interest) on, and any Additional Amounts and, if applicable, any Additional Tax Sums and sinking fund payments required with respect to, all Securities of the series of which such Security is a part shall have been paid in full. If any amount shall be paid to the Guarantor in violation of the preceding sentence and the Securities of the relevant series shall not have been paid in full, such amount shall have been deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Securities of such series, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon such Securities, whether matured or unmatured, in accordance with the terms of this Indenture. Section 15.8. Indemnity. As a separate and alternative stipulation, the Guarantor unconditionally and irrevocably agrees that any sum expressed to be payable by the Company under this Indenture or the Securities but which is for any reason (whether or not now known or becoming known to the Company, the Guarantor, the Trustee or any Holder of any Security) not recoverable from the Guarantor on the basis of a guarantee will nevertheless be recoverable from it as if it were the sole principal debtor and will be paid by it to the Trustee on demand. This indemnity constitutes a separate and independent obligation from the other obligations in this Indenture, gives rise to a separate and independent cause of action and will apply irrespective of any indulgence granted by the Trustee or any Holder of any Security. -89- ARTICLE XVI Subordination of Guarantee Section 16.1. Guarantee Subordinate to Guarantor Senior Debt. The Guarantor covenants and agrees, and each Holder of a Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the payment by the Guarantor pursuant to the Guarantee of the principal of, any premium and interest (including any Additional Interest) on and Additional Amounts (if any) and Additional Tax Sums (if any) with respect to each and all of the Securities of each and every series of Guaranteed Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Guarantor Senior Debt. Section 16.2. No Payment When Guarantor Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc. (a) If the Guarantor shall default in the payment of any principal of or any premium or interest on any Guarantor Senior Debt when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Guarantor by the holders of Guarantor Senior Debt or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made by the Guarantor pursuant to the Guarantee on account of the principal of or any premium or interest (including any Additional Interest) on or any Additional Amounts or Additional Tax Sums with respect to, any of the Securities, or in respect of any redemption, repayment, retirement, purchase or other acquisition of any of the Securities. (b) In the event of any Proceeding with respect to the Guarantor, all Guarantor Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, is made by the Guarantor pursuant to the Guarantee to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Guarantor or any other company provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Guarantor Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Guarantee in respect of the Securities of any series shall be paid or delivered directly to the holders of Guarantor Senior Debt in accordance with the priorities then existing among such holders until all Guarantor Senior Debt (including any interest thereon accruing after the commencement of any Proceeding) shall have been paid in full. (c) In the event of any Proceeding with respect to the Guarantor, after payment in full of all sums owing with respect to Guarantor Senior Debt, the Holders of the Securities, together with the holders of any obligations of the Guarantor ranking on a parity with the Guarantee in respect of the Securities, shall be entitled to be paid from the remaining assets of the Guarantor the amounts at the time due and owing under the Guarantee on account of unpaid principal of and any premium and interest on and any Additional -90- Amounts with respect to the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Guarantor ranking junior to the Guarantee in respect of the Securities and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Guarantor or any other company provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Guarantor Senior Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment) shall be received by the Trustee or any Holder in contravention of any of the terms hereof and before all Guarantor Senior Debt shall have been paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Guarantor Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Guarantor Senior Debt remaining unpaid, to the extent necessary to pay all such Guarantor Senior Debt in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Guarantor Senior Debt is hereby irrevocably authorized to endorse or assign the same. (d) The Trustee and the Holders, at the expense of the Guarantor, shall take such reasonable action (including the delivery of this Indenture to an agent for the holders of Guarantor Senior Debt or consent to the filing of a financing statement with respect hereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Guarantor Senior Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions. (e) The provisions of this Section 16.2 shall not impair any rights, interests, remedies or powers of any secured creditor of the Guarantor in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. (f) The securing of any obligations of the Guarantor, otherwise ranking on a parity with the Guarantee or ranking junior to the Guarantee, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Guarantee or ranking junior to the Guarantee. Section 16.3. Payment Permitted If No Default. Nothing contained in this Article or elsewhere in this Indenture or in the Guarantee shall prevent (a) the Guarantor, at any time, except during the pendency of the conditions described in paragraph (a) of Section 16.2 or of any Proceeding referred to in Section 16.2, from making payments pursuant to the Guarantee at any time of principal of and any premium or interest (including any Additional Interest) on or any Additional Amounts in respect to, the Securities or (b) the application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal of and any premium or interest (including any Additional Interest) and any Additional Amounts on the Securities or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in accordance with Section 16.8) that such payment would have been prohibited by the provisions of this Article, except as provided in Section 16.8. -91- Section 16.4. Subrogation to Rights of Holders of Guarantor Senior Debt. Subject to the payment in full of all amounts due or to become due on all Guarantor Senior Debt, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Senior Debt, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Guarantor Senior Debt pursuant to the provisions of this Article (equally and ratably with the holders of all indebtedness of the Guarantor that by its express terms is subordinated to Guarantor Senior Debt of the Guarantor to substantially the same extent as the Guarantee is subordinated to the Guarantor Senior Debt and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Guarantor Senior Debt) to the rights of the holders of such Guarantor Senior Debt to receive payments and distributions of cash, property and securities applicable to the Guarantor Senior Debt until the principal of and any premium and interest (including any Additional Interest) on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Guarantor Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments made pursuant to the provisions of this Article to the holders of Guarantor Senior Debt by Holders of the Securities or the Trustee, shall, as among the Guarantor, its creditors other than holders of Guarantor Senior Debt, and the Holders of the Securities, be deemed to be a payment or distribution by the Guarantor to or on account of the Guarantor Senior Debt. Section 16.5. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Guarantor Senior Debt on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Guarantee is intended to or shall (a) impair, as between the Guarantor and the Holders of the Securities, the obligations of the Guarantor, which are absolute and unconditional, to pay to the Holders of the Securities amounts due under the Guarantee when the same shall become due and payable in accordance with their terms, (b) affect the relative rights against the Guarantor of the Holders of the Securities and creditors of the Guarantor other than their rights in relation to the holders of Guarantor Senior Debt or (c) prevent the Trustee or the Holder of any Securities (or to the extent expressly provided herein, the holder of any Preferred Security) from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, including filing and voting claims in any Proceeding, subject to the rights, if any, under this Article of the holders of Guarantor Senior Debt to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. Section 16.6. Trustee to Effectuate Subordination. Each Holder of Securities by his or her acceptance thereof authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in this Article and appoints the Trustee his or her attorney-in-fact for any and all such purposes. -92- Section 16.7. No Waiver of Subordination Provisions. (a) No right of any present or future holder of any Guarantor Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise charged with. (b) Without in any way limiting the generality of paragraph (a) of this Section, the holders of Guarantor Senior Debt may, at any time and from to time, without the consent of or notice to the Trustee or the Holders of the Securities of any series, without incurring responsibility to such Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of such Holders of the Securities to the holders of Guarantor Senior Debt, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Guarantor Senior Debt, or otherwise amend or supplement in any manner Guarantor Senior Debt or any instrument evidencing the same or any agreement under which Guarantor Senior Debt is outstanding, (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Guarantor Senior Debt, (iii) release any Person liable in any manner for the collection of Guarantor Senior Debt and (iv) exercise or refrain from exercising any rights against the Guarantor and any other Person. Section 16.8. Notice to Trustee. (a) The Guarantor shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Guarantor that would prohibit the making of any payment to or by the Trustee in respect of the Guarantee pursuant to this Article. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment to or by the Trustee in respect of the Guarantee pursuant to this Article, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Guarantor or a holder of Guarantor Senior Debt or from any trustee, agent or representative therefor; provided, that if the Trustee shall not have received the notice provided for in this Section at least two Business Days prior to the date upon which by the terms hereof any monies may become payable for any purpose (including, the payment pursuant to the Guarantee of the principal of and any premium on or interest (including any Additional Interest) on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. (b) The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or herself to be a holder of Guarantor Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor) to establish that such notice has been given by a holder of Guarantor Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Guarantor Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Guarantor Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment -93- or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 16.9. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Guarantor referred to in this Article, the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Guarantor Senior Debt and other indebtedness of the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. Section 16.10. Trustee Not Fiduciary for Holders of Guarantor Senior Debt. The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior Debt and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of the Securities or to the Guarantor or to any other Person cash, property or securities to which any holders of Guarantor Senior Debt shall be entitled by virtue of this Article or otherwise. Section 16.11. Rights of Trustee as Holder of Guarantor Senior Debt; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Guarantor Senior Debt that may at any time be held by it, to the same extent as any other holder of Guarantor Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Section 16.12. Article Applicable to Paying Agents. If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee, provided, that Sections 16.8 and 16.11 shall not apply to the Company or the Guarantor or any Affiliate of the Company or the Guarantor if the Guarantor or such Affiliate acts as Paying Agent. -94- 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. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written. MUTUAL GROUP LTD., as Issuer By: ________________________________ Name: Title: Attest: ________________________ MUTUAL RISK MANAGEMENT LTD., as Guarantor By: ________________________________ Name: Title: Attest: ________________________ THE CHASE MANHATTAN BANK By: ________________________________ Name: Title: -95- STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ____ day of ___________, ____, before me personally came ___________________________, to me known, who, being by me duly sworn, did depose and say that he is ____________________ of Mutual Risk Management Ltd., one of the corporations described in and which executed the foregoing instrument, and that he signed his name thereto by like authority. _____________________________ STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ____ day of ___________, ____, before me personally came ___________________________, to me known, who, being by me duly sworn, did depose and say that he is ____________________ of Mutual Group Ltd., one of the corporations described in and which executed the foregoing instrument, and that he signed his name thereto by like authority. _____________________________ STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ____ day of ___________, ____, before me personally came ___________________________, to me known, who, being by me duly sworn, did depose and say that he is ___________________ of The Chase Manhattan Bank, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. _____________________________ -96- EX-4.12 7 REMOVAL AND APPOINTMENT TRUSTEE MRM CAP TRUST I Exhibit 4.12 REMOVAL AND APPOINTMENT OF TRUSTEE OF MRM CAPITAL TRUST I This Removal and Appointment of Trustee of MRM Capital Trust I (the "Trust") is made as of March 27, 2000 (this "Appointment"), by Mutual Group Ltd., a Delaware corporation, as Depositor (the "Depositor"), and agreed to and acknowledged by Chase Manhattan Trust Company, National Association, a national association ("Chase"), as a removed trustee of the Trust, and The Chase Manhattan Bank, a New York banking corporation ("Chase Bank"), as an additional trustee of the Trust. WHEREAS, the Trust was created pursuant to the filing of a Certificate of Trust of the Trust with the Delaware Secretary of State on February 3, 2000, and by the entering into of a Trust Agreement of the Trust, dated as of February 3, 2000 (the "Trust Agreement"); WHEREAS, under the Trust Agreement, Chase is a trustee of the Trust; WHEREAS, the Depositor desires to remove Chase as a trustee of the Trust and to appoint Chase Bank as an additional trustee of the Trust; and WHEREAS, Chase Bank desires to become an additional trustee of the Trust and, immediately following such appointment, Chase shall be deemed removed as a trustee of the Trust. NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties, intending to be legally bound, hereby agree as follows: 1. Pursuant to Section 6 of the Trust Agreement, the Depositor hereby appoints Chase Bank as an additional trustee of the Trust. Chase Bank hereby accepts such appointment and agrees to be a trustee of the Trust pursuant to the Trust Agreement. 2. Immediately following the appointment by the Depositor of Chase Bank as a trustee of the Trust pursuant to Section 1 hereof, the Depositor hereby removes Chase from the Trust as a trustee of the Trust. Chase's removal shall be deemed effective immediately following the appointment by the Depositor of Chase Bank as an additional trustee of the Trust pursuant to Section 1 hereof. 3. All references in the Trust Agreement to the term "Trustees" are deemed to include a reference to Chase Bank as a trustee of the Trust. 4. This appointment may be executed in one or more counterparts. 5. Except to the extent that it is expressly modified by this Appointment, the Trust Agreement shall continue in full force and effect. 6. This Appointment shall be governed by, and construed in accordance with, the laws of the State of Delaware (without regard to conflict of laws principles). [SIGNATURE PAGE FOLLOWS] 2 IN WITNESS WHEREOF, the parties hereto have caused this Appointment to be duly executed as of the date and year first above written. MUTUAL GROUP LTD., as Depositor By: /s/ Robert Mulderig ----------------------------------- Name: Robert Mulderig Title: Chairman and Chief Executive Officer THE CHASE MANHATTAN BANK, as an additional trustee of the Trust By: /s/ Kathleen Perry ----------------------------------- Name: Kathleen Perry Title: Vice President CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, solely to acknowledge its removal as a trustee of the Trust By: /s/ Karen Vera ----------------------------------- Name: Karen Vera Title: Assistant Vice President 3 EX-4.13 8 REMOVAL AND APPOINTMENT TRUSTEE MRM CAP TRUST II Exhibit 4.13 REMOVAL AND APPOINTMENT OF TRUSTEE OF MRM CAPITAL TRUST II This Removal and Appointment of Trustee of MRM Capital Trust II (the "Trust") is made as of March 27, 2000 (this "Appointment"), by Mutual Group Ltd., a Delaware corporation, as Depositor (the "Depositor"), and agreed to and acknowledged by Chase Manhattan Trust Company, National Association, a national association ("Chase"), as a removed trustee of the Trust, and The Chase Manhattan Bank, a New York banking corporation ("Chase Bank"), as an additional trustee of the Trust. WHEREAS, the Trust was created pursuant to the filing of a Certificate of Trust of the Trust with the Delaware Secretary of State on February 3, 2000, and by the entering into of a Trust Agreement of the Trust, dated as of February 3, 2000 (the "Trust Agreement"); WHEREAS, under the Trust Agreement, Chase is a trustee of the Trust; WHEREAS, the Depositor desires to remove Chase as a trustee of the Trust and to appoint Chase Bank as an additional trustee of the Trust; and WHEREAS, Chase Bank desires to become an additional trustee of the Trust and, immediately following such appointment, Chase shall be deemed removed as a trustee of the Trust. NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties, intending to be legally bound, hereby agree as follows: 1. Pursuant to Section 6 of the Trust Agreement, the Depositor hereby appoints Chase Bank as an additional trustee of the Trust. Chase Bank hereby accepts such appointment and agrees to be a trustee of the Trust pursuant to the Trust Agreement. 2. Immediately following the appointment by the Depositor of Chase Bank as a trustee of the Trust pursuant to Section 1 hereof, the Depositor hereby removes Chase from the Trust as a trustee of the Trust. Chase's removal shall be deemed effective immediately following the appointment by the Depositor of Chase Bank as an additional trustee of the Trust pursuant to Section 1 hereof. 3. All references in the Trust Agreement to the term "Trustees" are deemed to include a reference to Chase Bank as a trustee of the Trust. 4. This Appointment may be executed in one or more counterparts. 5. Except to the extent that it is expressly modified by this Appointment, the Trust Agreement shall continue in full force and effect. 6. This Appointment shall be governed by, and construed in accordance with, the laws of the State of Delaware (without regard to conflict of laws principles). [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have caused this Appointment to be duly executed as of the date and year first above written. MUTUAL GROUP LTD., as Depositor By: /s/ Robert Mulderig ------------------------------ Name: Robert Mulderig Title: Chairman and Chief Executive Officer THE CHASE MANHATTAN BANK, as an additional trustee of the Trust By: /s/ Kathleen Perry -------------------------------- Name: Kathleen Perry Title: Vice President CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, solely to acknowledge its removal as a trustee of the Trust By: /s/ Karen Vera ------------------------------- Name: Karen Vera Title: Assistant Vice President 3 EX-4.14 9 REMOVAL AND APPOIINTMENT TRUSTEE MRM CAP TRUST III Exhibit 4.14 REMOVAL AND APPOINTMENT OF TRUSTEE OF MRM CAPITAL TRUST III This Removal and Appointment of Trustee of MRM Capital Trust III (the "Trust") is made as of March 27, 2000 (this "Appointment"), by Mutual Group Ltd., a Delaware corporation, as Depositor (the "Depositor"), and agreed to and acknowledged by Chase Manhattan Trust Company, National Association, a national association ("Chase"), as a removed trustee of the Trust, and The Chase Manhattan Bank, a New York banking corporation ("Chase Bank"), as an additional trustee of the Trust. WHEREAS, the Trust was created pursuant to the filing of a Certificate of Trust of the Trust with the Delaware Secretary of State on February 3, 2000, and by the entering into of a Trust Agreement of the Trust, dated as of February 3, 2000 (the "Trust Agreement"); WHEREAS, under the Trust Agreement, Chase is a trustee of the Trust; WHEREAS, the Depositor desires to remove Chase as a trustee of the Trust and to appoint Chase Bank as an additional trustee of the Trust; and WHEREAS, Chase Bank desires to become an additional trustee of the Trust and, immediately following such appointment, Chase shall be deemed removed as a trustee of the Trust. NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties, intending to be legally bound, hereby agree as follows: 1. Pursuant to Section 6 of the Trust Agreement, the Depositor hereby appoints Chase Bank as an additional trustee of the Trust. Chase Bank hereby accepts such appointment and agrees to be a trustee of the Trust pursuant to the Trust Agreement. 2. Immediately following the appointment by the Depositor of Chase Bank as a trustee of the Trust pursuant to Section 1 hereof, the Depositor hereby removes Chase from the Trust as a trustee of the Trust. Chase's removal shall be deemed effective immediately following the appointment by the Depositor of Chase Bank as an additional trustee of the Trust pursuant to Section 1 hereof. 3. All references in the Trust Agreement to the term "Trustees" are deemed to include a reference to Chase Bank as a trustee of the Trust. 4. This Appointment may be executed in one or more counterparts. 5. Except to the extent that it is expressly modified by this Appointment, the Trust Agreement shall continue in full force and effect. 6. This Appointment shall be governed by, and construed in accordance with, the laws of the State of Delaware (without regard to conflict of laws principles). [SIGNATURE PAGE FOLLOWS] 2 IN WITNESS WHEREOF, the parties hereto have caused this Appointment to be duly executed as of the date and year first above written. MUTUAL GROUP LTD., as Depositor By: /s/ Robert Mulderig -------------------------------- Name: Robert Mulderig Title: Chairman and Chief Executive Officer THE CHASE MANHATTAN BANK, as an additional trustee of the Trust By: /s/ Kathleen Perry ------------------------------- Name: Kathleen Perry Title: Vice President CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, solely to acknowledge its removal as a trustee of the Trust By: /s/ Karen Vera -------------------------------- Name: Karen Vera Title: Assistant Vice President 3 EX-4.15 10 FORM AMENDED AND RESTATED TRUST AGREEMENT Exhibit 4.15 ================================================================================ AMENDED AND RESTATED TRUST AGREEMENT among MUTUAL GROUP, LTD., as Depositor [MUTUAL GROUP, LTD. or MUTUAL RISK MANAGEMENT LTD.], as Issuer THE CHASE MANHATTAN BANK, as Property Trustee CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee and THE ADMINISTRATIVE TRUSTEES NAMED HEREIN as Administrative Trustees __________________________ Dated as of _________________, 2000 __________________________ MRM CAPITAL TRUST [ ] ================================================================================ TABLE OF CONTENTS
Page ARTICLE I. Defined Terms SECTION 1.1. Definitions........................................................................... 1 ARTICLE II. The Trust SECTION 2.1. Name.................................................................................. 10 SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........................... 10 SECTION 2.3. Initial Contribution of Trust Property; Fees, Costs and Expenses...................... 11 SECTION 2.4. Purposes of Trust..................................................................... 11 SECTION 2.5. Authorization to Enter into Certain Transactions...................................... 11 SECTION 2.6. Assets of Trust....................................................................... 14 SECTION 2.7. Title to Trust Property............................................................... 14 ARTICLE III. Payment Account; Paying Agents SECTION 3.1. Payment Account....................................................................... 14 SECTION 3.2. Appointment of Paying Agents.......................................................... 15 ARTICLE IV. DISTRIBUTIONS; REDEMPTION SECTION 4.1. Distributions......................................................................... 15 SECTION 4.2. Redemption............................................................................ 16 SECTION 4.3. Subordination of Common Securities.................................................... 19 SECTION 4.4. Payment Procedures.................................................................... 19 SECTION 4.5. Withholding Tax....................................................................... 20 SECTION 4.6. Tax Returns and Reports............................................................... 20 SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust........................................... 20 SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions................................ 20 SECTION 4.9. Exchanges............................................................................. 20
i Article V. Securities SECTION 5.1. Initial Ownership.................................................................. 21 SECTION 5.2. Authorized Trust Securities........................................................ 21 SECTION 5.3. Issuance of the Common Securities; Subscription and Purchase of Notes.......................................................................... 22 SECTION 5.4. Issuance of the Preferred Securities............................................... 22 SECTION 5.5. The Securities Certificates........................................................ 22 SECTION 5.6. Rights of Holders.................................................................. 23 SECTION 5.7. Book-Entry Preferred Securities.................................................... 23 SECTION 5.8. Registration of Transfer and Exchange of Preferred Securities Certificates................................................................... 25 SECTION 5.9. Mutilated, Destroyed, Lost or Stolen Securities Certificates....................... 26 SECTION 5.10. Persons Deemed Holders............................................................. 27 SECTION 5.11. Cancellation....................................................................... 27 SECTION 5.12. Ownership of Common Securities by Depositor........................................ 27 ARTICLE VI. Meetings; Voting; Acts Of Holders SECTION 6.1. Notice of Meetings................................................................. 28 SECTION 6.2. Meetings of Holders of the Preferred Securities.................................... 28 SECTION 6.3. Voting Rights...................................................................... 28 SECTION 6.4. Proxies, Etc....................................................................... 29 SECTION 6.5. Holder Action by Written Consent................................................... 29 SECTION 6.6. Record Date for Voting and Other Purposes.......................................... 29 SECTION 6.7. Acts of Holders.................................................................... 29 SECTION 6.8. Inspection of Records.............................................................. 30 SECTION 6.9. Limitations on Voting Rights....................................................... 30 SECTION 6.10. Waivers of Past Defaults........................................................... 31 ARTICLE VII. Representations and Warranties SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee............................................................... 34 SECTION 7.2. Representations and Warranties of Depositor........................................ 35
ii ARTICLE VIII. The Trustees SECTION 8.1. Number of Trustees................................................................ 35 SECTION 8.2. Property Trustee Required......................................................... 35 SECTION 8.3. Delaware Trustee Required......................................................... 36 SECTION 8.4. Appointment of Administrative Trustees............................................ 36 SECTION 8.5. Duties and Responsibilities of the Trustees....................................... 37 SECTION 8.6. Notices of Defaults and Extensions................................................ 38 SECTION 8.7. Certain Rights of Property Trustee................................................ 39 SECTION 8.8. Delegation of Power............................................................... 41 SECTION 8.9. May Hold Securities............................................................... 41 SECTION 8.10. Compensation; Reimbursement; Indemnity............................................ 42 SECTION 8.11. Conflicting Interests............................................................. 42 SECTION 8.12. Resignation and Removal; Appointment of Successor................................. 43 SECTION 8.13. Acceptance of Appointment by Successor............................................ 44 SECTION 8.14. Merger, Conversion, Consolidation or Succession to Business....................... 44 SECTION 8.15. Not Responsible for Recitals or Issuance of Securities............................ 45 SECTION 8.16. Preferential Collection of Claims Against Depositor or Trust...................... 45 SECTION 8.17. Property Trustee May File Proofs of Claim......................................... 45 SECTION 8.18. Reports by the Property Trustee................................................... 46 SECTION 8.19. Reports to the Property Trustee................................................... 46 SECTION 8.20. Evidence of Compliance with Conditions Precedent.................................. 46 ARTICLE IX. Termination, Liquidation and Merger SECTION 9.1. Dissolution Upon Expiration Date.................................................. 47 SECTION 9.2. Early Termination................................................................. 47 SECTION 9.3. Termination....................................................................... 47 SECTION 9.4. Liquidation....................................................................... 48 SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust................... 49 ARTICLE X. Miscellaneous Provisions SECTION 10.1. Limitation of Rights of Holders................................................... 50 SECTION 10.2. Agreed Tax Treatment of Trust and Trust Securities................................ 51 SECTION 10.3. Amendment......................................................................... 51 SECTION 10.5. Separability...................................................................... 52 SECTION 10.6. Governing Law..................................................................... 52 SECTION 10.7. Successors........................................................................ 53
iii SECTION 10.8. Headings.......................................................................... 53 SECTION 10.9. Reports, Notices and Demands...................................................... 53 SECTION 10.10. Agreement Not to Petition......................................................... 54 SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act............................ 54 Exhibit A Certificate of Trust Exhibit B Form of Common Securities Certificate Exhibit C Form of Preferred Securities Certificate
iv AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________, 2000, among (i) Mutual Group, Ltd., a Delaware corporation (including any successors or assigns, the "Depositor"), (ii) [Mutual Group, Ltd./Mutual Risk Management Ltd.], a [Delaware/ Bermuda] corporation (including any successors or assigns, the "Issuer"), (iii) The Chase Manhattan Bank, a New York banking corporation, as property trustee (in such capacity, the "Property Trustee" and, in its separate corporate capacity and not in its capacity as Property Trustee, the "Bank"), (iv) Chase Manhattan Bank Delaware, a Delaware banking corporation, as Delaware trustee (in such capacity, the "Delaware Trustee"), (v) ____________, an individual, _________, an individual and ___________, an individual, each of whose address is c/o Mutual Group, Ltd., One Logan Square, Suite 1500, Philadelphia Pennsylvania 19103 (each an "Administrative Trustee" and collectively the "Administrative Trustees" and, together with the Property Trustee and the Delaware Trustee, the "Trustees") and (vi) the several Holders, as hereinafter defined. Witnesseth Whereas, the Depositor, the Property Trustee and the Delaware Trustee have heretofore created a Delaware business trust pursuant to the Delaware Business Trust Act by entering into a Trust Agreement, dated as of ________, 2000 (the "Original Trust Agreement"), and by execution of and filing with the Secretary of State of the State of Delaware the Certificate of Trust, filed on _________, 2000, substantially in the form attached as Exhibit A (the "Certificate of Trust"); and Whereas, the Depositor and the Trustees desire to amend and restate the Original Trust Agreement in its entirety as set forth herein to provide for, among other things, (i) the issuance of the Common Securities by the Trust to the Depositor, (ii) the issuance and sale of the Preferred Securities by the Trust pursuant to the Underwriting Agreement and (iii) the acquisition by the Trust from the Issuer of all of the right, title and interest in the Notes; Now, Therefore, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders, hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows: ARTICLE I. Defined Terms Section 1.1 Definitions. For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article; (b) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (c) the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation"; (d) all accounting terms used but not defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (e) unless the context otherwise requires, any reference to an "Article," a "Section" or an "Exhibit" refers to an Article, a Section or an Exhibit, as the case may be, of or to this Trust Agreement; (f) the words "hereby," "herein," "hereof" and "hereunder" and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision; (g) a reference to the singular includes the plural and vice-versa; and (h) the masculine, feminine or neuter genders used herein shall include the masculine, feminine and neuter genders. "Act" has the meaning specified in Section 6.7. "Additional Interest" has the meaning specified in Section 1.1 of the Indenture. "Additional Interest Amount" means, with respect to Trust Securities of a given Liquidation Amount and/or a given period, the amount of Additional Interest paid by the Issuer on a Like Amount of Notes for such period. "Additional Tax Sums" has the meaning specified in Section 10.7 of the Indenture. "Additional Taxes" has the meaning specified in Section 1.1 of the Indenture "Administrative Trustee" means each of the Persons identified as an "Administrative Trustee" in the preamble to this Trust Agreement, solely in each such Person's capacity as Administrative Trustee of the Trust and not in such Person's individual capacity, or any successor Administrative Trustee appointed as herein provided. "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 2 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. "Applicable Procedures" means, with respect to any transfer or transaction involving a Book-Entry Preferred Security, the rules and procedures of the Depositary for such Book-Entry Preferred Security, in each case to the extent applicable to such transaction and as in effect from time to time. "Bank" has the meaning specified in the preamble to this Trust Agreement. "Bankruptcy Event" means, with respect to any Person: (a) the entry of a decree or order by a court having jurisdiction in the premises judging such Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such Person under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator or other similar official of such Person 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 unstayed and in effect for a period of 60 consecutive days; or (b) the filing by such Person of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or similar official of such Person or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of any such action. "Bankruptcy Laws" means all federal, state and foreign bankruptcy, insolvency, reorganization and other similar laws, including the United States Bankruptcy Code. "Board of Directors" means the board of directors of the Depositor or any other duly authorized committee of the board of directors of the Depositor. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Depositor to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification. "Book-Entry Preferred Security" means a Preferred Security, the ownership and transfer of which shall be made through book entries by a Depositary. 3 "Business Day" means a day other than (a) a Saturday or Sunday, (b) a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or (c) a day on which the Corporate Trust Office is closed for business. "Closing Date" has the meaning specified in the Underwriting Agreement, which date is also the date of execution and delivery of this Trust Agreement. "Code" means the United States Internal Revenue Code of 1986, as amended. "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 instrument 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. "Common Securities Certificate" means a certificate evidencing ownership of Common Securities, substantially in the form attached as Exhibit B. "Common Security" means an undivided beneficial interest in the assets of the Trust, having a Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement. "Corporate Trust Office" means the office of the Property Trustee at which any particular time its corporate trust business shall be principally administered, which office at the date of this Trust Agreement is located at 450 West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services. "Definitive Preferred Securities Certificates" means Preferred Securities issued in certificated, fully registered form that are not Global Preferred Securities. "Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code (S) 3801 et seq., or any successor statute thereto, in each case as amended from time to time. "Delaware Trustee" means the Person identified as the "Delaware Trustee" in the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware Trustee appointed as herein provided. "Depositary" means an organization registered as a clearing agency under the Exchange Act that is designated as Depositary by the Depositor or any successor thereto. DTC will be the initial Depositary. "Depositary Participant" means any member of, or participant in, the Depositary. "Depositor" has the meaning specified in the preamble to this Trust Agreement and any permitted successor and assigns. 4 "Depositor Affiliate" has the meaning specified in Section 4.9. "Distribution Date" has the meaning specified in Section 4.1(a). "Distributions" means amounts payable in respect of the Trust Securities as provided in Section 4.1. "DTC" means The Depository Trust Company or any successor thereto. "Early Termination Event" has the meaning specified in Section 9.2. "Event of Default" means any one of the following events (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) the occurrence of a Note Event of Default; or (b) default by the Trust in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or (c) default by the Trust in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or (d) default in the performance, or breach, in any material respect, of any covenant or warranty of the Trustees in this Trust Agreement (other than those specified in clause (b) or (c) above) and continuation of such default or breach for a period of 30 days after there has been given, by registered or certified mail, to the Trustees and to the Depositor and the Issuer by the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Preferred Securities 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, unless Holders in aggregate Liquidation Amount of Outstanding Preferred Securities not less than the aggregate Liquidation Amount of Outstanding Preferred Securities that gave such notice shall agree in writing to an extension of such period prior to its expiration; or (e) the occurrence of a Bankruptcy Event with respect to the Property Trustee if a successor Property Trustee has not been appointed within 90 days thereof. "Exchange Act" means the Securities Exchange Act of 1934, and any successor statute thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 9.1. "Global Preferred Security" means a Preferred Securities Certificate evidencing ownership of Book-Entry Preferred Securities. 5 "Guarantee Agreement" means the Guarantee Agreement executed and delivered by the Issuer [and, if Mutual Group is the Issuer, MRM] and The Chase Manhattan Bank, as guarantee trustee, contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the holders of the Preferred Securities, as amended from time to time. "Holder" means a Person in whose name a Trust Security or Trust Securities are registered in the Securities Register; any such Person shall be a beneficial owner within the meaning of the Delaware Business Trust Act. "Indemnified Person" has the meaning specified in Section 8.10(c). "Indenture" means the Junior Subordinated Indenture executed and delivered by the Issuer and the Note Trustee, as indenture trustee, [and if Mutual Group is the Issuer, MRM, as guarantor,] contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the holders of the Notes, as amended or supplemented from time to time. "Investment Company Act" means the Investment Company Act of 1940, or any successor statute thereto, in each case as amended from time to time. "Issuer" means [Mutual Group or MRM]. "Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever. "Like Amount" means (a) with respect to a redemption of any Trust Securities, Trust Securities having a Liquidation Amount equal to the principal amount of Notes to be contemporaneously redeemed in accordance with the Indenture, the proceeds of which will be used to pay the Redemption Price of such Trust Securities, (b) with respect to a distribution of Notes to Holders of Trust Securities in connection with a dissolution of the Trust, Notes having a principal amount equal to the Liquidation Amount of the Trust Securities of the Holder to whom such Notes are distributed and (c) with respect to any distribution of Additional Interest Amounts to Holders of Trust Securities, Notes having a principal amount equal to the Liquidation Amount of the Trust Securities in respect of which such distribution is made. "Liquidation Amount" means the stated amount of $1,000 per Trust Security. "Liquidation Date" means the date on which assets are to be distributed to Holders in accordance with Section 9.4 hereunder following dissolution of the Trust. "Liquidation Distribution" has the meaning specified in Section 9.4(d). "Majority in Liquidation Amount of the Preferred Securities" means, except as provided by the Trust Indenture Act, Preferred Securities representing more than 50% of the aggregate Liquidation Amount of all then Outstanding Preferred Securities. 6 "Mutual Group" means Mutual Group, Ltd., a Delaware corporation. "MRM" means Mutual Risk Management Ltd., a company organized under the laws of Bermuda. "Note Event of Default" means any "Event of Default" specified in Section 5.1 of the Indenture. "Note Redemption Date" means, with respect to any Notes to be redeemed under the Indenture, the date fixed for redemption of such Notes under the Indenture. "Note Trustee" means the Person identified as the "Trustee" in the Indenture, solely in its capacity as Trustee pursuant to the Indenture and not in its individual capacity, or its successor in interest in such capacity, or any successor Trustee appointed as provided in the Indenture. "Notes" means the ____% Junior Subordinated Deferrable Interest Notes issued by the Issuer pursuant to the Indenture. "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Depositor, and delivered to the Trustees. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement (other than the certificate provided pursuant to Section 8.19) shall include: (a) a statement by each officer signing the Officers' Certificate that such officer has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officers' Certificate; (c) a statement that such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Depositor or the Issuer or any Affiliate of the Depositor or the Issuer. "Original Trust Agreement" has the meaning specified in the recitals to this Trust Agreement. 7 "Outstanding," when used with respect to any Trust Securities, means, as of the date of determination, all Trust Securities theretofore executed and delivered under this Trust Agreement, except: (a) Trust Securities theretofore canceled by the Property Trustee or delivered to the Property Trustee for cancellation; (b) Trust Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent in trust for the Holders of such Trust Securities; provided, that if such Trust Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Trust Agreement; and (c) Trust Securities that have been paid or in exchange for or in lieu of which other Trust Securities have been executed and delivered pursuant to the provisions of this Trust Agreement, unless proof satisfactory to the Property Trustee is presented that any such Trust Securities are held by Holders in whose hands such Trust Securities are valid, legal and binding obligations of the Trust; provided, that in determining whether the Holders of the requisite Liquidation Amount of the Outstanding Preferred Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Preferred Securities owned by the Depositor, the Issuer, any Trustee or any Affiliate of the Depositor, the Issuer or of any Trustee shall be disregarded and deemed not to be Outstanding, except that (i) in determining whether any Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Preferred Securities that such Trustee knows to be so owned shall be so disregarded and (ii) the foregoing shall not apply at any time when all of the Outstanding Preferred Securities are owned by the Depositor, the Issuer, one or more of the Trustees and/or any such Affiliate. Preferred Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrative Trustees the pledgee's right so to act with respect to such Preferred Securities and that the pledgee is not the Depositor or the Issuer or any Affiliate of the Depositor or the Issuer. "Owner" means each Person who is the beneficial owner of Book-Entry Preferred Securities as reflected in the records of the Depositary or, if a Depositary Participant is not the beneficial owner, then the beneficial owner as reflected in the records of the Depositary Participant. "Paying Agent" means any Person authorized by the Administrative Trustees to pay Distributions or other amounts in respect of any Trust Securities on behalf of the Trust. "Payment Account" means a segregated non-interest-bearing corporate trust account maintained by the Property Trustee for the benefit of the Holders in which all amounts paid in respect of the Notes will be held and from which the Property Trustee, through the Paying Agent, shall make payments to the Holders in accordance with Sections 4.1 and 4.2. 8 "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association or government, or any agency or political subdivision thereof, or any other entity of whatever nature. "Preferred Security" means an undivided beneficial interest in the assets of the Trust, having a Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement. "Preferred Securities Certificate" means a certificate evidencing ownership of Preferred Securities, substantially in the form attached as Exhibit C. "Property Trustee" means the Person identified as the "Property Trustee" in the preamble to this Trust Agreement, solely in its capacity as Property Trustee of the Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor Property Trustee appointed as herein provided. "Redemption Date" means, with respect to any Trust Security to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided, that each Note Redemption Date and the maturity of the Notes shall be a Redemption Date for a Like Amount of Trust Securities. "Redemption Price" means, with respect to any Trust Security, the Liquidation Amount of such Trust Security, plus accumulated and unpaid Distributions to the Redemption Date, plus the related amount of the premium, if any, paid by the Issuer upon the concurrent redemption of a Like Amount of Notes. "Securities Act" means the Securities Act of 1933, and any successor statute thereto, in each case as amended from time to time. "Securities Certificate" means any one of the Common Securities Certificates or the Preferred Securities Certificates. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 5.8. "Trust" means the Delaware business trust known as "MRM Capital Trust [ ], " which was created on ____________, 2000 under the Delaware Business Trust Act pursuant to the Original Trust Agreement and the filing of the Certificate of Trust, and continued pursuant to this Trust Agreement. "Trust Agreement" means this Amended and Restated Trust Agreement, as the same may be modified, amended or supplemented in accordance with the applicable provisions hereof, including (a) all exhibits and (b) for all purposes of this Trust Agreement and any such modification, amendment or supplement, the provisions of the Trust Indenture Act that are 9 deemed to be a part of and govern this Trust Agreement and any such modification, amendment or supplement, respectively. "Trustees" has the meaning specified in the preamble to this Trust Agreement. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, that if the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trust Property" means (a) the Notes, (b) any cash on deposit in, or owing to, the Payment Account and (c) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Property Trustee pursuant to the trusts of this Trust Agreement. "Trust Security" means any one of the Common Securities or the Preferred Securities. "Underwriting Agreement" means any underwriting agreement, purchase agreement or placement agreement executed and delivered by the Trust, the Depositor, the Issuer [, and if Mutual Group is the Issuer, MRM, as guarantor] and the underwriters named therein. ARTICLE II. The Trust Section 2.1 Name. The trust continued hereby shall be known as "MRM Capital Trust [ ]," as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders of Trust Securities and the other Trustees, in which name the Trustees may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued. Section 2.2 Office of the Delaware Trustee; Principal Place of Business. The address of the Delaware Trustee in the State of Delaware is Chase Manhattan Bank Delaware, 1201 Market Street, 8th Floor, Wilmington, Delaware 19801, Attention: Capital Markets Fiduciary Services, or such other address in the State of Delaware as the Delaware Trustee may designate by written notice to the Holders, the Depositor, the Property Trustee and the Administrative Trustees. The principal executive office of the Trust is c/o Mutual Group, Ltd., One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, Attention: ____________, as such address may be changed from time to time by the Administrative Trustees following written notice to the Holders and the other Trustees. 10 Section 2.3 Initial Contribution of Trust Property; Fees, Costs and Expenses. The Property Trustee acknowledges receipt from the Depositor in connection with the Original Trust Agreement of the sum of $10, which constituted the initial Trust Property. The Depositor shall pay all fees, costs and expenses of the Trust (except with respect to the Trust Securities) as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee for any such fees, costs and expenses paid by such Trustee. The Depositor shall make no claim upon the Trust Property for the payment of such fees, costs or expenses. Section 2.4 Purposes of Trust. (a) The exclusive purposes and functions of the Trust are (i) to issue and sell Trust Securities and use the proceeds from such sale to acquire the Notes and (ii) to engage in only those activities necessary or incidental thereto. The Delaware Trustee, the Property Trustee and the Administrative Trustees are trustees of the Trust, and have all the rights, powers and duties to the extent set forth herein. The Trustees hereby acknowledge that they are trustees of the Trust. (b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, the Trust (or the Trustees acting on behalf of the Trust) shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) incur any indebtedness for borrowed money or issue any other debt, (iv) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, (v) take or consent to any action that would reasonably be expected to cause the Trust to become taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes, (vi) take or consent to any action that would cause the Notes to be treated as other than indebtedness of the Depositor for United States federal income tax purposes or (vii) take or consent to any action that would cause the Trust to be deemed to be an "investment company" required to be registered under the Investment Company Act. Section 2.5 Authorization to Enter into Certain Transactions. (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. In accordance with the following provisions (i) and (ii), the Trustees shall have the authority to enter into all transactions and agreements determined by the Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees, under this Trust Agreement, and to perform all acts in furtherance thereof, including the following: (i) As among the Trustees, each Administrative Trustee shall have the power and authority to act on behalf of the Trust with respect to the following matters: (A) the issuance and sale of the Trust Securities; 11 (B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, such agreements as may be necessary or desirable in connection with the purposes and function of the Trust; (C) assisting in the sale of the Preferred Securities in one or more transactions registered under the Securities Act or exempt from registration under the Securities Act, and in compliance with applicable state securities or blue sky laws; (D) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Notes to the Holders in accordance with this Trust Agreement; (E) the appointment of a Paying Agent and Securities Registrar in accordance with this Trust Agreement; (F) execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; (G) execution and delivery of closing certificates, if any, pursuant to the Underwriting Agreement and application for a taxpayer identification number for the Trust; (H) preparation and filing of all applicable tax returns and tax information reports that are required to be filed on behalf of the Trust; (I) establishing a record date with respect to all actions to be taken hereunder that require a record date to be established, except as provided in Section 6.10(a); (J) unless otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, to execute on behalf of the Trust (either acting alone or together with the other Administrative Trustees) any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement; and (K) the taking of any action incidental to the foregoing as the Administrative Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement. (ii) As among the Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters: (A) the receipt and holding of legal title of the Notes; (B) the establishment of the Payment Account; 12 (C) the collection of interest, principal and any other payments made in respect of the Notes and the holding of such amounts in the Payment Account; (D) the distribution through the Paying Agent of amounts distributable to the Holders in respect of the Trust Securities; (E) the exercise of all of the rights, powers and privileges of a holder of the Notes in accordance with the terms of this Trust Agreement; (F) the sending of notices of default and other information regarding the Trust Securities and the Notes to the Holders in accordance with this Trust Agreement; (G) the distribution of the Trust Property in accordance with the terms of this Trust Agreement; (H) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and (I) the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder). (b) In connection with the issuance and sale of the Preferred Securities, the Depositor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects): (i) the execution and filing with the Commission of the registration statement on Form S-3 prepared by the Depositor in relation to the Preferred Securities, including any amendments thereto prepared by the Depositor; (ii) the execution and filing of any documents prepared by the Depositor, or the taking of any acts as determined by the Depositor as necessary in order to qualify or register all or part of the Preferred Securities in any state in which the Depositor has determined to qualify or register such Preferred Securities for sale; (iii) the execution and filing of an application prepared by the Depositor to the New York Stock Exchange or any other national stock exchange or the Nasdaq Stock Market's National Market for listing upon notice of issuance of any Preferred Securities; 13 (iv) the execution and filing with the Commission of a registration statement on Form 8-A prepared by the Depositor relating to the registration of the class of Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto prepared by the Depositor; (v) the negotiation of the terms of, and the execution and delivery of, the Underwriting Agreement providing for the sale of the Preferred Securities in one or more transactions registered under the Securities Act or exempt from registration under the Securities Act, and in compliance with applicable state securities or blue sky laws; and (vi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities. (c) Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes, so that the Notes will be treated as indebtedness of the Depositor for United States federal income tax purposes and so that the Trust will not be deemed to be an "investment company" required to be registered under the Investment Company Act. In this connection, each Administrative Trustee is authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such Administrative Trustee determines in his or her discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Preferred Securities. In no event shall the Administrative Trustees be liable to the Trust or the Holders for any failure to comply with this section that results from a change in law or regulation or in the interpretation thereof. (d) An action taken by a Trustee in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Trust Agreement. Section 2.6 Assets of Trust. The assets of the Trust shall consist of the Trust Property. Section 2.7 Title to Trust Property. (a) Legal title to all Trust Property shall be vested at all times in the Property Trustee and shall be held and administered by the Property Trustee in trust for the benefit of the Trust and the Holders in accordance with this Trust Agreement. (b) The Holders shall not have any right or title to the Trust Property other than the undivided beneficial interest in the assets of the Trust conferred by their Trust Securities and they shall have no right to call for any partition or division of property, profits or rights of the 14 Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically set forth therein and in this Trust Agreement. ARTICLE III Payment Account; Paying Agents Section 3.1 Payment Account. (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment Account. The Property Trustee and the Paying Agent (subject to Section 3.2) shall have exclusive control and sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in and withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and other property deposited or held from time to time in the Payment Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of the Holders and for distribution as herein provided, including (and subject to) any priority of payments provided for herein. (b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all payments of principal of or interest on, and any other payments or proceeds with respect to, the Notes. Amounts held in the Payment Account shall not be invested by the Property Trustee pending distribution thereof. Section 3.2 Appointment of Paying Agents. The Paying Agent shall initially be the Bank. The Paying Agent shall make Distributions to Holders from the Payment Account and shall report the amounts of such Distributions to the Property Trustee and the Administrative Trustees. Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account solely for the purpose of making the Distributions referred to above. The Administrative Trustees may revoke such power and remove the Paying Agent in their sole discretion. Any Person acting as Paying Agent may resign as Paying Agent upon 30 days' written notice to the Administrative Trustees and the Property Trustee. If the Bank shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to act be revoked, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company) to act as Paying Agent. Such successor Paying Agent appointed by the Administrative Trustees shall execute and deliver to the Trustees an instrument in which such successor Paying Agent shall agree with the Trustees that as Paying Agent, such successor Paying Agent will hold all sums, if any, held by it for payment to the Holders in trust for the benefit of the Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon the resignation or removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Property Trustee. The provisions of Sections 8.5, 8.7, 8.9, 8.10 and 8.15 shall apply to the Bank in its role as Paying Agent, for so long as the Bank shall act as Paying Agent and, to the extent applicable, to any other Paying Agent appointed hereunder. Any reference in this 15 Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. ARTICLE IV. Distributions; Redemption Section 4.1 Distributions. (a) The Trust Securities represent undivided beneficial interests in the Trust Property, and Distributions (including of Additional Interest Amounts) will be made on the Trust Securities at the rate and on the dates that payments of interest (including any Additional Interest) are made on the Notes. Accordingly: (i) Distributions on the Trust Securities shall be cumulative, and shall accumulate whether or not there are funds of the Trust available for the payment of Distributions. Distributions shall accumulate from __________, 2000, and, except as provided in clause (ii) below, shall be payable quarterly in arrears on __________, __________, __________ and __________ of each year, commencing on __________. If any date on which a Distribution is otherwise payable on the Trust Securities is not a Business Day, then the payment of such Distribution shall be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on such date (each date on which distributions are payable in accordance with this Section 4.1(a), a "Distribution Date"); (ii) in the event (and to the extent) that the Issuer exercises its right under the Indenture to defer the payment of interest on the Notes, Distributions on the Trust Securities shall be deferred; (iii) Distributions shall accumulate in respect of the Trust Securities at a rate of ____% per annum of the Liquidation Amount of the Trust Securities. The amount of Distributions payable for any period less than a full Distribution period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in a partial month in a period. Distributions payable for each full Distribution period will be computed by dividing the rate per annum by [four]. The amount of Distributions payable for any period shall include any Additional Interest Amounts in respect of such period; and (iv) Distributions on the Trust Securities shall be made by the Paying Agent from the Payment Account and shall be payable on each Distribution Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Distributions. 16 (b) Distributions on the Trust Securities with respect to a Distribution Date shall be payable to the Holders thereof as they appear on the Securities Register for the Trust Securities at the close of business on the relevant record date, which shall be at the close of business on the fifteenth day (whether or not a Business Day) next preceding the relevant Distribution Date. Distributions payable on any Trust Securities that are not punctually paid on any Distribution Date as a result of the Issuer having failed to make an interest payment under the Notes will cease to be payable to the Person in whose name such Trust Securities are registered on the relevant record date, and such defaulted Distributions and any Additional Interest Amounts will instead be payable to the Person in whose name such Trust Securities are registered on the special record date or other specified date for determining Holders entitled to such defaulted Distribution and Additional Interest Amount established in accordance with the Indenture. Section 4.2. Redemption. (a) On each Note Redemption Date and on the maturity of the Notes, the Trust (subject, in the case of redemption, to the Property Trustee having received notice of such redemption and of the principal amount to be redeemed from the [Depositor/Issuer] no later than 15 days prior to such Note Redemption Date) will be required to redeem a Like Amount of Trust Securities at the Redemption Price. (b) Notice of redemption shall be given by the Property Trustee 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 Trust Securities to be redeemed, at such Holder's address appearing in the Securities Register. All notices of redemption shall state: (i) the Redemption Date; (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price provided pursuant to the Indenture, as calculated by the Issuer, together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the third Business Day prior to the Redemption Date (and if an estimate is provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated); (ii) if less than all the Outstanding Trust Securities are to be redeemed, the identification and the aggregate Liquidation Amount of the particular Trust Securities to be redeemed; (iv) that on the Redemption Date, the Redemption Price will become due and payable upon each such Trust Security to be redeemed and that Distributions thereon will cease to accumulate on and after said date, except as provided in Section 4.2(d) below; and (v) the place or places where the Trust Securities are to be surrendered for the payment of the Redemption Price; and 17 (vi) such other provisions as the Property Trustee deems relevant. (c) The Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption of Notes. Redemptions of the Trust Securities shall be made and the Redemption Price shall be payable on each Redemption Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Redemption Price. (d) If the Property Trustee gives a notice of redemption in respect of any Preferred Securities, then by 10:00 A.M., New York City time, on the Redemption Date, the Issuer shall deposit or shall cause to be deposited sufficient funds with the Property Trustee to pay the Redemption Price. If such deposit has been made by such time, then by 12:00 noon, New York City time, on the Redemption Date, the Property Trustee will, with respect to Book-Entry Preferred Securities, irrevocably deposit with the Depositary for such Book-Entry Preferred Securities, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give such Depositary irrevocable instructions and authority to pay the Redemption Price to the Holders of the Preferred Securities. With respect to Preferred Securities that are not Book- Entry Preferred Securities, the Property Trustee will irrevocably deposit with the Paying Agent, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Preferred Securities upon surrender of their Preferred Securities Certificates. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Securities called for redemption shall be payable to the Holders of such Trust Securities as they appear on the Securities Register on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then upon the date of such deposit, all rights of Holders holding Trust Securities so called for redemption will cease, except the right of such Holders to receive the Redemption Price and any Distribution payable in respect of the Trust Securities on or prior to the Redemption Date, but without interest, and such Securities will cease to be Outstanding. In the event that any date on which any Redemption Price is payable is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (without any interest or other payment in respect of any such delay), except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on such date. In the event that payment of the Redemption Price in respect of any Trust Securities called for redemption is improperly withheld or refused and not paid either by the Trust or by the Issuer pursuant to the Guarantee Agreement, Distributions on such Trust Securities will continue to accumulate, as set forth in Section 4.1, from the Redemption Date originally established by the Trust for such Trust Securities to the date such Redemption Price is actually paid, in which case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price. (e) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities to be redeemed shall be allocated pro rata to the Common Securities and the Preferred Securities based upon the relative Liquidation Amounts of such classes. The particular Preferred Securities 18 to be redeemed shall be selected on a pro rata basis based upon their respective Liquidation Amounts not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Preferred Securities not previously called for redemption, provided, that so long as the Preferred Securities are Book- Entry Preferred Securities, such selection shall be made in accordance with the Applicable Procedures for the Preferred Securities by such Depositary. The Property Trustee shall promptly notify the Securities Registrar in writing of the Preferred Securities selected for redemption and, in the case of any Preferred Securities selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Preferred Securities shall relate, in the case of any Preferred Securities redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of Preferred Securities that has been or is to be redeemed. (f) The Trust in issuing the Trust Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Property Trustee shall indicate the "CUSIP" numbers of the Trust Securities in notices of redemption and related materials as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Trust Securities or as contained in any notice of redemption and related materials. Section 4.3. Subordination of Common Securities. (a) Payment of Distributions (including any Additional Interest Amounts) on, the Redemption Price of, and the Liquidation Distribution in respect of, the Trust Securities, as applicable, shall be made, pro rata among the Common Securities and the Preferred Securities based on the Liquidation Amount of the Trust Securities; provided, that if on any Distribution Date, Redemption Date or Liquidation Date an Event of Default resulting from a Note Event of Default shall have occurred and be continuing, no payment of any Distribution (including any Additional Interest Amounts) on, Redemption Price of, or Liquidation Distribution in respect of any Common Security, and no other payment on account of the redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions (including any Additional Interest Amounts) on all Outstanding Preferred Securities for all Distribution periods terminating on or prior thereto, or in the case of payment of the Redemption Price the full amount of such Redemption Price on all Outstanding Preferred Securities then called for redemption, or in the case of payment of the Liquidation Distribution the full amount of such Liquidation Distribution on all Outstanding Preferred Securities, shall have been made or provided for, and all funds immediately available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions (including any Additional Interest Amounts) on, or the Redemption Price of, the Preferred Securities then due and payable. (b) In the case of the occurrence of any Event of Default resulting from a Note Event of Default, the Holders of the Common Securities shall have no right to act with respect to any such Event of Default under this Trust Agreement until the effect of all such Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated. Until all such Events of Default under this Trust Agreement with respect to the Preferred Securities 19 have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the Holders of the Preferred Securities and not on behalf of the Holders of the Common Securities, and only the Holders of the Preferred Securities will have the right to direct the Property Trustee to act on their behalf. Section 4.4. Payment Procedures. Payments of Distributions (including any Additional Interest Amounts) or of the Redemption Price, Liquidation Amount or any other amounts in respect of the Preferred Securities shall be made by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register or, at the option of the Depositor, by wire transfer to accounts specified by the Holders in accordance with procedures established by the Administrative Trustees and acceptable to the Paying Agent. If the Preferred Securities are held by a Depositary, such Distributions shall be made to the Depositary in immediately available funds. Payments in respect of the Common Securities shall be made in such manner as shall be mutually agreed between the Property Trustee and the Holder of all the Common Securities. Section 4.5. Withholding Tax. The Trust and the Administrative Trustees shall comply with all withholding and backup withholding tax requirements under United States federal, state and local law. The Trust shall request, and the Holders shall provide to the Trust, such forms or certificates as are necessary to establish an exemption from withholding and backup withholding tax with respect to each Holder, and any representations and forms as shall reasonably be requested by the Trust to assist it in determining the extent of, and in fulfilling, its withholding and backup withholding tax obligations. The Administrative Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding and backup withholding tax is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Trust is required to withhold and pay over any amounts to any authority with respect to Distributions or allocations to any Holder, the amount withheld shall be deemed to be a Distribution in the amount of the withholding to the Holder. In the event of any claimed overwithholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual Distributions made, the Trust may reduce subsequent Distributions by the amount of such required withholding. Section 4.6. Tax Returns and Reports. The Administrative Trustees shall prepare (or cause to be prepared), at the Depositor's expense, and file on a timely basis all United States federal, state and local tax and information returns and reports required to be filed by or in respect of the Trust and prepare and furnish (or cause to be prepared and furnished) to each Holder all Internal Revenue Service forms and returns required to be provided by the Trust. The Administrative Trustees shall provide the Depositor and the Property Trustee with a copy of all such returns and reports promptly after such filing or furnishing. 20 Section 4.7. Payment of Taxes, Duties, Etc. of the Trust. Upon receipt under the Notes of Additional Tax Sums and upon the written direction of the Administrative Trustees, the Property Trustee shall promptly pay, solely out of monies on deposit pursuant to this Trust Agreement, any Additional Taxes imposed on the Trust by the United States or any other taxing authority. Section 4.8. Payments under Indenture or Pursuant to Direct Actions. Any amount payable hereunder to any Holder of Preferred Securities shall be reduced by the amount of any corresponding payment such Holder (or any Owner with respect thereto) has directly received pursuant to Section 5.8 of the Indenture or Section 6.10(b) of this Trust Agreement. Section 4.9. Exchanges. (a) If at any time the Depositor, the Issuer or any of their Affiliates (in either case, a "Depositor Affiliate") is the Owner or Holder of any Preferred Securities, such Depositor Affiliate shall have the right to deliver to the Property Trustee all or such portion of its Preferred Securities as it elects and receive, in exchange therefor, a Like Amount of Notes. Such election (i) shall be exercisable effective on any Distribution Date by such Depositor Affiliate delivering to the Property Trustee a written notice of such election specifying the Liquidation Amount of Preferred Securities with respect to which such election is being made and the Distribution Date on which such exchange shall occur, which Distribution Date shall be not less than ten Business Days after the date of receipt by the Property Trustee of such election notice and (ii) shall be conditioned upon such Depositor Affiliate having delivered or caused to be delivered to the Property Trustee or its designee the Preferred Securities that are the subject of such election by 10:00 A.M. New York time, on the Distribution Date on which such exchange is to occur. After the exchange, such Preferred Securities will be canceled and will no longer be deemed to be Outstanding and all rights of the Depositor Affiliate with respect to such Preferred Securities will cease. (b) In the case of an exchange described in Section 4.9(a), the Trust will,on the date of such exchange, exchange Notes having a principal amount equal to a proportional amount of the aggregate Liquidation Amount of the Outstanding Common Securities, based on the ratio of the aggregate Liquidation Amount of the Preferred Securities exchanged pursuant to Section 4.9(a) divided by the aggregate Liquidation Amount of the Preferred Securities Outstanding immediately prior to such exchange, for such proportional amount of Common Securities held by the Depositor (which contemporaneously shall be canceled and no longer be deemed to be Outstanding); provided, that the Depositor delivers or causes to be delivered to the Property Trustee or its designee the required amount of Common Securities to be exchanged by 10:00 A.M. New York time, on the Distribution Date on which such exchange is to occur. 21 ARTICLE V. Securities Section 5.1. Initial Ownership. Upon the creation of the Trust and the contribution by the Depositor referred to in Section 2.3 and until the issuance of the Trust Securities, and at any time during which no Trust Securities are Outstanding, the Depositor shall be the sole beneficial owner of the Trust. Section 5.2. Authorized Trust Securities. The Trust shall be authorized to issue one series of Preferred Securities having an aggregate Liquidation Amount of $__________ and one series of Common Securities having an aggregate Liquidation Amount of $__________. Section 5.3. Issuance of the Common Securities; Subscription and Purchase of Notes. On the Closing Date, an Administrative Trustee, on behalf of the Trust, shall execute and the Property Trustee shall deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor, evidencing an aggregate of __________ Common Securities having an aggregate Liquidation Amount of $__________, against receipt of the aggregate purchase price of such Common Securities of $___________, to the Property Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe for and purchase from the Issuer Notes, registered in the name of the Property Trustee on behalf of the Trust and having an aggregate principal amount equal to $__________, and, in satisfaction of the purchase price for such Notes, the Property Trustee, on behalf of the Trust, shall deliver to the Issuer the sum of $__________ (being the aggregate amount paid by the Holders for the Preferred Securities and the amount paid by the Depositor for the Common Securities). Section 5.4. Issuance of the Preferred Securities. On _________, 2000, the Depositor, both on its own behalf and on behalf of the Trust, pursuant to the Original Trust Agreement, executed and delivered the Underwriting Agreement. On the Closing Date, an Administrative Trustee, on behalf of the Trust, shall execute, and the Property Trustee shall deliver to the underwriters, Preferred Securities Certificates, registered in the names requested by the underwriters, evidencing an aggregate of ________ Preferred Securities having an aggregate Liquidation Amount of $_________, against receipt of the aggregate purchase price of such Preferred Securities of $_________ by the Property Trustee. 22 Section 5.5. The Securities Certificates. (a) The Preferred Securities Certificates shall be issued in minimum denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in excess thereof, and the Common Securities Certificates shall be issued in denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in excess thereof. The Securities Certificates shall be executed on behalf of the Trust by manual signature of at least one Administrative Trustee. Securities Certificates bearing the signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust shall be validly issued and entitled to the benefits of this Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the delivery of such Securities Certificates or did not hold such offices at the date of delivery of such Securities Certificates. (b) On the Closing Date, the Administrative Trustees shall cause Securities Certificates in an aggregate Liquidation Amount as provided in Section 5.3 and Section 5.4 to be executed on behalf of the Trust and delivered to or upon the written order of the Depositor, executed by an authorized officer thereof, without further corporate action by the Depositor, in authorized denominations. (c) Upon the election of the Depositor prior their original issuance, Preferred Securities shall be Book-Entry Preferred Securities issued in the form of one or more Global Preferred Securities registered in the name of DTC, as Depositary, or its nominee and deposited with DTC or a custodian for DTC for credit by DTC to the respective accounts of the Owners thereof (or such other accounts as they may direct). Section 5.6. Rights of Holders The Trust Securities shall have no preemptive or similar rights and when issued and delivered to Holders against payment of the purchase price therefor will be fully paid and nonassessable by the Trust. Except as provided in Section 5.12(b), the Holders of the Trust Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. Section 5.7. Book-Entry Preferred Securities. (a) No Global Preferred Security may be exchanged in whole or in part for Preferred Securities Certificates registered, and no transfer of a Global Preferred Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Preferred Security or a nominee thereof unless (i) the Depositary advises the Administrative Trustees and the Property Trustee in writing that the Depositary is no longer willing or able to properly discharge its responsibilities with respect to the Global Preferred Security, and no qualified successor is appointed by the Administrative Trustees within 90 days of receipt of such notice, (ii) the Depositary ceases to be a clearing agency registered under the Exchange Act and no qualified successor is appointed by the Administrative Trustees within 90 days of receipt of notice or becoming aware of such event, (iii) the Administrative Trustees at their option advise 23 the Property Trustee in writing that the Trust elects to terminate the book- entry system through the Depositary or (iv) a Note Event of Default has occurred and is continuing. Upon the occurrence of any event specified in clause (i), (ii), (iii) or (iv) above, the Administrative Trustees shall notify the Depositary and instruct the Depositary to notify all Owners of Book-Entry Preferred Securities, the Delaware Trustee and the Property Trustee of the occurrence of such event and of the availability of the Definitive Preferred Securities Certificates to Owners of the Preferred Securities. Upon the issuance of Definitive Preferred Securities Certificates, the Trustees shall recognize the Holders of the Definitive Preferred Securities Certificates as Holders. (b) If any Global Preferred Security is to be exchanged for other Preferred Securities or canceled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Securities Registrar for exchange or cancellation as provided in this Article V. If any Global Preferred Security is to be exchanged for other Preferred Securities Certificates or canceled in part, then either (i) such Global Preferred Security shall be so surrendered for exchange or cancellation as provided in this Article V or (ii) the aggregate Liquidation Amount represented by such Global Preferred Security shall be reduced by an amount equal to the Liquidation Amount represented by that portion of the Global Preferred Security to be so exchanged or canceled, by means of an appropriate adjustment made on the records of the Securities Registrar, whereupon the Property Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender to the Securities Registrar of the Global Preferred Security or Securities by the Depositary, accompanied by registration instructions, the Administrative Trustees, or any one of them, shall execute the Definitive Preferred Securities Certificates in accordance with the instructions of the Depositary. Neither the Securities Registrar nor the Trustees shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. (c) Every Preferred Securities Certificate executed and delivered upon registration or transfer of, or in exchange for or in lieu of, a Global Preferred Security or any portion thereof shall be executed and delivered in the form of, and shall be, a Global Preferred Security, unless such Preferred Securities Certificate is registered in the name of a Person other than the Depositary for such Global Preferred Security or a nominee thereof. (d) The Depositary or its nominee, as registered owner of a Global Preferred Security, shall be the Holder of such Global Preferred Security for all purposes under this Agreement and the Global Preferred Security, and Owners with respect to a Global Preferred Security shall hold such interests pursuant to the Applicable Procedures. The Securities Registrar and the Trustees shall be entitled to deal with the Depositary for all purposes of this Trust Agreement relating to the Global Preferred Securities (including the payment of the Liquidation Amount of and Distributions on the Book-Entry Preferred Securities represented thereby and the giving of instructions or directions by Owners of Book-Entry Preferred Securities represented thereby and the giving of notices) as the sole Holder of the Book-Entry Preferred Securities represented thereby and shall have no obligations to the Owners thereof. None of the Trustees nor the Securities Registrar shall have any liability in respect of any transfers effected by the Depositary. 24 (e) The rights of the Owners of the Book-Entry Preferred Securities shall be exercised only through the Depositary and shall be limited to those established by law, the Applicable Procedures and agreements between such Owners and the Depositary and/or the Depositary Participants, provided, solely for the purpose of determining whether the Holders of the requisite amount of Preferred Securities have voted on any matter provided for in this Trust Agreement, so long as Definitive Preferred Security Certificates have not been issued pursuant to Section 5.7(a), the Trustees may conclusively rely on, and shall be fully protected in relying on, any written instrument (including a proxy) delivered to the Property Trustee by the Depositary setting forth the Owners' votes or assigning the right to vote on any matter to any other Persons either in whole or in part. Unless and until Definitive Preferred Securities Certificates are issued pursuant to Section 5.7(a), the initial Depositary will make book-entry transfers among the Depositary Participants and receive and transmit payments on the Preferred Securities to such Depositary Participants, and none of the Depositor or the Trustees shall have any responsibility or obligation with respect thereto. (f) To the extent that a notice or other communication to the Holders is required under this Trust Agreement, for so long as Preferred Securities are represented by a Global Preferred Security, the Trustees shall give all such notices and communications specified herein to be given to the Depositary, and shall have no obligations to the Owners. Section 5.8. Registration of Transfer and Exchange of Preferred Securities Certificates. (a) The Property Trustee shall keep or cause to be kept, at the Corporate Trust Office a register in which, subject to such reasonable regulations as it may prescribe, it shall provide for the registration of Preferred Securities Certificates and Common Securities Certificates and registration of transfers of Preferred Securities Certificates as herein provided (the "Securities Register"). The Person acting as the Property Trustee shall at all times also be the "Securities Registrar." The provisions of Article VIII shall apply to the Property Trustee in its role as Securities Registrar. (b) Upon surrender for registration of transfer of any Preferred Securities Certificate at the office or agency designated for that purpose, the Administrative Trustees or any one of them shall execute and deliver to the Property Trustee, and the Property Trustee shall deliver, in the name of the designated transferee or transferees, one or more new Preferred Securities Certificates in authorized denominations of a like aggregate Liquidation Amount as may be required by this Trust Agreement dated the date of execution by such Administrative Trustee or Trustees. (c) At the option of a Holder, Preferred Securities Certificates may be exchanged for other Preferred Securities Certificates in authorized denominations and of a like aggregate Liquidation Amount upon surrender of the Preferred Securities Certificate to be exchanged at the office or agency designated for that purpose. Whenever any Preferred Securities Certificates are so surrendered for exchange, the Administrative Trustees or any one of them shall execute and deliver to the Property Trustee, and the Property Trustee shall deliver, the Preferred Securities Certificates that the Holder making the exchange is entitled to receive. 25 (d) Every Preferred Securities Certificate presented or surrendered for transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Securities Registrar duly executed by the Holder or such Holder's attorney duly authorized in writing. (e) No service charge shall be made for any transfer or exchange of Preferred Securities Certificates, but the Trust may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Preferred Securities Certificates. (f) The Securities Registrar shall not be required, (i) to issue, register the transfer of or exchange any Preferred Security during a period beginning at the opening of business 15 days before the day of selection for redemption of such Preferred Securities pursuant to Article IV and ending at the close of business on the day of mailing of the notice of redemption or (ii) to register the transfer of or exchange any Preferred Security so selected for redemption in whole or in part, except, in the case of any such Preferred Security to be redeemed in part, any portion thereof not to be redeemed. (g) The Administrative Trustees shall designate an office or offices or agency or agencies where Preferred Securities Certificates may be surrendered for transfer or exchange. The Company initially designates the Corporate Trust Office as its office and agency for such purposes. The Administrative Trustees shall give prompt written notice to the Depositor, the Property Trustee and to the Holders of any change in the location of any such office or agency. Section 5.9. Mutilated, Destroyed, Lost or Stolen Securities Certificates. (a) If any mutilated Securities Certificate shall be surrendered to the Securities Registrar together with such security or indemnity as may be required by the Securities Registrar and the Administrative Trustees to save each of them harmless, the Administrative Trustees, or any one of them, on behalf of the Trust, shall execute and make available for delivery in exchange therefor a new Securities Certificate of like class, tenor and denomination. (b) If the Securities Registrar and the Administrative Trustees shall receive evidence to their satisfaction of the destruction, loss or theft of any Securities Certificate and such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Securities Certificate shall have been acquired by a bona fide purchaser, the Administrative Trustees, or any one of them, on behalf of the Trust shall execute and make available for delivery, in exchange for or in lieu of any such destroyed, lost or stolen Securities Certificate, a new Securities Certificate of like class, tenor and denomination. (c) Any duplicate Securities Certificate issued pursuant to this Section 5.9 shall constitute conclusive evidence of an undivided beneficial interest in the assets of the Trust corresponding to that evidenced by the lost, stolen or destroyed Securities Certificate, as if originally issued, whether or not the lost, stolen or destroyed Securities Certificate shall be found at any time. 26 (d) If any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Administrative Trustees in their discretion may, instead of issuing a new Security, pay such Security. (e) Upon the issuance of any new Securities Certificate under this Section 5.9, the Administrative Trustees or the Securities Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. (f) The provisions of this Section 5.9 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of or payment with respect to mutilated, destroyed, lost or stolen Securities Certificates. Section 5.10. Persons Deemed Holders. The Trustees and the Securities Registrar shall each treat the Person in whose name any Securities Certificate shall be registered in the Securities Register as the owner of such Securities Certificate for the purpose of receiving Distributions and for all other purposes whatsoever, and none of the Trustees and the Securities Registrar shall be bound by any notice to the contrary. Section 5.11. Cancellation. All Preferred Securities Certificates surrendered for transfer or exchange or for payment shall, if surrendered to any Person other than the Property Trustee, be delivered to the Property Trustee, and any such Preferred Securities Certificates and Preferred Securities Certificates surrendered directly to the Property Trustee for any such purpose shall be promptly canceled by it. The Administrative Trustees may at any time deliver to the Property Trustee for cancellation any Preferred Securities Certificates previously delivered hereunder that the Administrative Trustees may have acquired in any manner whatsoever, and all Preferred Securities Certificates so delivered shall be promptly canceled by the Property Trustee. No Preferred Securities Certificates shall be executed and delivered in lieu of or in exchange for any Preferred Securities Certificates canceled as provided in this Section, except as expressly permitted by this Trust Agreement. All canceled Preferred Securities Certificates shall be disposed of by the Property Trustee in accordance with its customary practices and the Property Trustee shall deliver to the Administrative Trustees a certificate of such disposition. Section 5.12. Ownership of Common Securities by Depositor. (a) On the Closing Date, the Depositor shall acquire, and thereafter shall retain, beneficial and record ownership of the Common Securities. Neither the Depositor nor any successor Holder of the Common Securities may transfer less than all the Common Securities, and the Depositor or any such successor Holder may transfer the Common Securities only (i) in connection with a consolidation or merger of the Depositor into another Person, or any conveyance, transfer or lease by the Depositor of its properties and assets substantially as an entirety to any Person, [pursuant to] [in a manner consistent with] Section 8.1 of the Indenture or (ii) to the Depositor or an Affiliate of the Depositor in compliance with applicable law (including the Securities Act, and applicable state securities and blue sky laws). To the fullest extent permitted by law, any 27 attempted transfer of the Common Securities other than as set forth in the immediately preceding sentence shall be void. The Administrative Trustees shall cause each Common Securities Certificate issued to the Depositor to contain a legend stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.12 OF THE TRUST AGREEMENT." (b) Any Holder of the Common Securities shall be liable for the debts and obligations of the Trust in the manner and to the extent set forth with respect to the Depositor and agrees that it shall be subject to all liabilities to which the Depositor may be subject. ARTICLE VI. Meetings; Voting; Acts of Holders Section 6.1 Notice of Meetings. Notice of all meetings of the Holders of the Preferred Securities, stating the time, place and purpose of the meeting, shall be given by the Property Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at such Holder's registered address, at least 15 days and not more than 90 days before the meeting. At any such meeting, any business properly before the meeting may be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be held as adjourned without further notice. Section 6.2 Meetings of Holders of the Preferred Securities. (a) No annual meeting of Holders is required to be held. The Property Trustee, however, shall call a meeting of the Holders of the Preferred Securities to vote on any matter upon the written request of the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Preferred Securities and the Administrative Trustees or the Property Trustee may, at any time in their discretion, call a meeting of the Holders of the Preferred Securities to vote on any matters as to which such Holders are entitled to vote. (b) The Holders of at least a Majority in Liquidation Amount of the Preferred Securities, present in person or by proxy, shall constitute a quorum at any meeting of the Holders of the Preferred Securities. (c) If a quorum is present at a meeting, an affirmative vote by the Holders present, in person or by proxy, holding Preferred Securities representing at least a Majority in Liquidation Amount of the Preferred Securities held by the Holders present, either in person or by proxy, at such meeting shall constitute the action of the Holders of the Preferred Securities, unless this Trust Agreement requires a lesser or greater number of affirmative votes. 28 Section 6.3. Voting Rights. Holders shall be entitled to one vote for each $1,000 of Liquidation Amount represented by their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled to vote. Section 6.4 Proxies, Etc. At any meeting of Holders, any Holder entitled to vote thereat may vote by proxy, provided, that no proxy shall be voted at any meeting unless it shall have been placed on file with the Administrative Trustees, or with such other officer or agent of the Trust as the Administrative Trustees may direct, for verification prior to the time at which such vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in the name of the Property Trustee or one or more officers of the Property Trustee. Only Holders of record shall be entitled to vote. When Trust Securities are held jointly by several Persons, any one of them may vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one of them shall be present at such meeting in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be cast, such vote shall not be received in respect of such Trust Securities. A proxy purporting to be executed by or on behalf of a Holder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. No proxy shall be valid more than three years after its date of execution. Section 6.5. Holder Action by Written Consent. Any action that may be taken by Holders at a meeting may be taken without a meeting and without prior notice if Holders holding at least a Majority in Liquidation Amount of all Preferred Securities entitled to vote in respect of such action (or such lesser or greater proportion thereof as shall be required by any other provision of this Trust Agreement) shall consent to the action in writing. Any action that may be taken by the Holders of all the Common Securities may be taken if such Holders shall consent to the action in writing. Section 6.6 Record Date for Voting and Other Purposes. Except as provided in Section 6.10(a), for the purposes of determining the Holders who are entitled to notice of and to vote at any meeting or to act by written consent, or to participate in any distribution on the Trust Securities in respect of which a record date is not otherwise provided for in this Trust Agreement, or for the purpose of any other action, the Administrative Trustees may from time to time fix a date, not more than 90 days prior to the date of any meeting of Holders or the payment of a distribution or other action, as the case may be, as a record date for the determination of the identity of the Holders of record for such purposes. 29 Section 6.7. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Trust Agreement to be given, made 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 otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to an Administrative Trustee. 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 Trust Agreement and conclusive in favor of the Trustees, 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 such signer's individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer's 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 that any Trustee receiving the same deems sufficient. (c) The ownership of Trust Securities shall be proved by the Securities Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Trust Security shall bind every future Holder of the same Trust Security and the Holder of every Trust 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 Trustees, the Administrative Trustees or the Trust in reliance thereon, whether or not notation of such action is made upon such Trust Security. (e) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Trust Security may do so with regard to all or any part of the Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such Liquidation Amount. (f) If any dispute shall arise among the Holders or the Trustees with respect to the authenticity, validity or binding nature of any request, demand, authorization, direction, consent, waiver or other Act of such Holder or Trustee under this Article, then the determination of such matter by the Property Trustee shall be conclusive with respect to such matter. 30 Section 6.8. Inspection of Records. Upon reasonable written notice to the Administrative Trustees and the Property Trustee, the records of the Trust shall be open to inspection by any Holder during normal business hours for any purpose reasonably related to such Holder's interest as a Holder. Section 6.9. Limitations on Voting Rights. (a) Except as expressly provided in this Trust Agreement and in the Indenture and as otherwise required by law, no Holder of Preferred Securities shall have any right to vote or in any manner otherwise control the administration, operation and management of the Trust or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Securities Certificates, be construed so as to constitute the Holders from time to time as partners or members of an association. (b) So long as any Notes are held by the Property Trustee on behalf of the Trust, the Property Trustee shall not (i) direct the time, method and place of conducting any proceeding for any remedy available to the Note Trustee, or exercise any trust or power conferred on the Property Trustee with respect to the Notes, (ii) waive any past default that may be waived under Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Notes shall be due and payable or (iv) consent to any amendment, modification or termination of the Indenture or the Notes, where such consent shall be required, without, in each case, obtaining the prior approval of the Holders of at least a Majority in Liquidation Amount of the Preferred Securities, provided, that where a consent under the Indenture would require the consent of each Holder of Notes affected thereby, no such consent shall be given by the Property Trustee without the prior written consent of each Holder of Preferred Securities. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Preferred Securities, except by a subsequent vote of the Holders of the Preferred Securities. Subject to Section 8.6, the Property Trustee shall notify all Holders of the Preferred Securities of any notice of default received with respect to the Notes. In addition to obtaining the foregoing approvals of the Holders of the Preferred Securities, prior to taking any of the foregoing actions, the Property Trustee shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced in such matters to the effect that such action shall not cause the Trust to be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes. (c) If any proposed amendment to the Trust Agreement provides for, or the Trustees otherwise propose to effect, (i) any action that would adversely affect in any material respect the powers, preferences or special rights of the Preferred Securities, whether by way of amendment to the Trust Agreement or otherwise or (ii) the dissolution, winding-up or termination of the Trust, other than pursuant to the terms of this Trust Agreement, then the Holders of Outstanding Preferred Securities as a class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in Liquidation Amount of the Preferred Securities. Notwithstanding any other provision of this Trust Agreement, no amendment to this Trust Agreement may be made if, as a result of 31 such amendment, it would cause the Trust to be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes. Section 6.10. Waivers of Past Defaults. (a) For so long as any Preferred Securities remain Outstanding, if, upon a Note Event of Default, the Note Trustee fails or the holders of not less than 25% in principal amount of the outstanding Notes fail to declare the principal of all of the Notes to be immediately due and payable, the Holders of at least 25% in Liquidation Amount of the Preferred Securities then Outstanding shall have the right to make such declaration by a notice in writing to the Property Trustee, the Depositor, the Issuer, the guarantor of the Notes under the Indenture, if any, and the Note Trustee. At any time after a declaration of acceleration with respect to the Notes has been made and before a judgment or decree for payment of the money due has been obtained by the Note Trustee as provided in the Indenture, the Holders of at least a Majority in Liquidation Amount of the Preferred Securities, by written notice to the Property Trustee, the Depositor, the Issuer, the guarantor of the Notes under the Indenture, if any, and the Note Trustee, may rescind and annul such declaration and its consequences if: (i) the Issuer or any such guarantor has paid or deposited with the Note Trustee a sum sufficient to pay: (A) all overdue installments of interest on all of the Notes, (B) any accrued Additional Interest on all of the Notes, (C) the principal of and any premium on any Notes that have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Notes, and (D) all sums paid or advanced by the Note Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances of the Note Trustee, the Property Trustee and their agents and counsel; and (iii) all Note Events of Default, other than the non-payment of the principal of the Notes that has become due solely by such acceleration, have been cured or waived as provided in Section 5.13 of the Indenture. Upon receipt by the Property Trustee of written notice requesting such an acceleration, or rescission and annulment thereof, by Holders of any part of the Preferred Securities, a record date shall be established by the Property Trustee for determining Holders of Outstanding Preferred Securities entitled to join in such notice, which record date shall be at the close of business on the day the Property Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, 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 joined in such notice prior to the day that is 32 90 days after such record date, such notice of 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 paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice that 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 6.10(a). (b) For so long as any Preferred Securities remain Outstanding, to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the Indenture, upon a Note Event of Default specified in Section 5.1(a) or (b) of the Indenture, any Holder of Preferred Securities shall have the right to institute a proceeding directly against the Issuer or any guarantor of the Notes under the Indenture, pursuant to Section 5.8 of the Indenture, for enforcement of payment to such Holder of any amounts payable in respect of Notes having an aggregate principal amount equal to the aggregate Liquidation Amount of the Preferred Securities of such Holder. Except as set forth in Section 6.10(a) and this Section 6.10(b), the Holders of Preferred Securities shall have no right to exercise directly any right or remedy available to the holders of, or in respect of, the Notes. (c) Except as otherwise provided in Section 6.10(a) and (b), the Holders of at least a Majority in Liquidation Amount of the Preferred Securities may, on behalf of the Holders of all the Preferred Securities, waive any past Note Event of Default, except any Note Event of Default arising from the failure to pay any principal or interest on the Notes (unless such Note Event of Default has been cured and a sum sufficient to pay all matured installments of interest and all principal and premium on all Notes due otherwise than by acceleration has been deposited with the Note Trustee) or a Note Event of Default in respect of a covenant or provision that under the Indenture cannot be modified or amended without the consent of the holder of each outstanding Note. Upon any such waiver, such Note Event of Default shall cease to exist and any Note Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Indenture; but no such waiver shall affect any subsequent Note Event of Default or impair any right consequent thereon. (d) Except as otherwise provided in Section 6.10(a), (b) or (c), the Holders of at least a Majority in Liquidation Amount of the Preferred Securities may, on behalf of the Holders of all the Preferred Securities, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon. (e) The Holders of a Majority in Liquidation Amount of the Preferred Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee in respect of this Trust Agreement or the Notes or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement; provided, that, subject to Section 8.5, the Property Trustee shall have the right to decline to follow any such direction if the Property Trustee being advised by counsel determines that the action so 33 directed may not lawfully be taken, or if the Property Trustee in good faith shall, by an officer or officers of the Property Trustee, determine that the proceedings so directed would be illegal or involve it in personal liability or be unduly prejudicial to the rights of Holders not party to such direction, and provided, further, that nothing in this Trust Agreement shall impair the right of the Property Trustee to take any action deemed proper by the Property Trustee and which is not inconsistent with such direction. ARTICLE VII Representations and Warranties Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the Issuer and the Holders that: (a) the Property Trustee is a banking corporation, duly organized, validly existing and in good standing under the laws of the State of New York; (b) the Property Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) the Delaware Trustee is a banking corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware; (d) the Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (e) this Trust Agreement has been duly authorized, executed and delivered by the Property Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement of each of the Property Trustee and the Delaware Trustee enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and (f) the execution, delivery and performance of this Trust Agreement have been duly authorized by all necessary corporate or other action on the part of the Property Trustee and the Delaware Trustee and do not require any approval of stockholders of the Property Trustee and the Delaware Trustee and such execution, delivery and performance 34 will not (i) violate the Charter or By-laws of the Property Trustee or the Delaware Trustee or (ii) violate any applicable law, governmental rule or regulation of the State of New York or the State of Delaware, as the case may be, governing the banking or trust powers of the Property Trustee or the Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware Trustee. Section 7.2. Representations and Warranties of Depositor. The Depositor hereby represents and warrants for the benefit of the Holders that: (a) the Depositor is duly organized, validly existing and in good standing under the laws of its State of incorporation; (b) the Depositor has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) this Trust Agreement has been duly authorized, executed and delivered by the Depositor and constitutes the valid and legally binding agreement of the Depositor enforceable against the Depositor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and (d) the Securities Certificates issued at the Closing Date on behalf of the Trust have been duly authorized and will have been duly and validly executed, issued and delivered by the Administrative Trustees pursuant to the terms and provisions of, and in accordance with the requirements of, this Trust Agreement and the Holders will be, as of each such date, entitled to the benefits of this Trust Agreement. ARTICLE VII The Trustees Section 8.1. Number of Trustees. The number of Trustees shall be five, provided, that the Property Trustee and the Delaware Trustee may be the same Person, in which case the number of Trustees shall be four. The number of Trustees may be increased or decreased by Act of the Holder of the Common Securities. The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul, dissolve or terminate the Trust. 35 Section 8.2. Property Trustee Required. There shall at all times be a Property Trustee hereunder with respect to the Trust Securities. The Property Trustee shall be a Person that is a national or state chartered bank and eligible pursuant to the Trust Indenture Act to act as such, and that has at the time of such appointment a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 8.2 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person 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 Property Trustee shall cease to be eligible in accordance with the provisions of this Section 8.2, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 8.3. Delaware Trustee Required. (a) If required by the Delaware Business Trust Act, there shall at all times be a Delaware Trustee with respect to the Trust Securities. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware or (ii) a legal entity with its principal place of business in the State of Delaware and that otherwise meets the requirements of applicable Delaware law and that shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance with the provisions of this Section 8.3, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. (b) The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Property Trustee or the Administrative Trustees set forth herein. The Delaware Trustee shall be one of the trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware Business Trust Act and for taking such actions as are required to be taken by a Delaware trustee under the Delaware Business Trust Act. (c) It is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) any agreements or instruments executed and delivered by Chase Manhattan Bank Delaware are executed and delivered not in its individual capacity but solely as Delaware Trustee under this Trust Agreement in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank Delaware in its individual capacity but is made and intended for the purpose of binding only the Trust, and (iii) under no circumstances shall Chase Manhattan Bank Delaware in its individual capacity be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Trust Agreement, except if such breach or failure is due to any gross negligence or willful misconduct of the Delaware Trustee. 36 Section 8.4. Appointment of Administrative Trustees. (a) There shall at all times be one or more Administrative Trustees hereunder with respect to the Trust Securities. Each Administrative Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind that entity. Each of the individuals identified as an "Administrative Trustee" in the preamble of this Trust Agreement is hereby appointed as an Administrative Trustee and hereby accepts his or her appointment as such. (b) Except where a requirement for action by a specific number of Administrative Trustees is expressly set forth in this Trust Agreement, any act required or permitted to be taken by, and any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of an Administrative Trustee in accordance with Section 8.12, the Administrative Trustees in office, regardless of their number (and notwithstanding any other provision of this Agreement), shall have all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the Administrative Trustees by this Trust Agreement. Section 8.5. Duties and Responsibilities of the Trustees. (a) The rights, immunities, duties and responsibilities of the Trustees shall be as provided by this Trust Agreement and, in the case of the Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust Agreement shall require any of the Trustees 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 or their rights or powers, if it or they 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. Whether or not herein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Trustees shall be subject to the provisions of this Section 8.5. (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the revenue and proceeds from the Trust Property and only to the extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and proceeds from the Trust Property to the extent legally available for distribution to it as herein provided and that the Trustees are not personally liable to it for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This Section 8.5(b) does not limit the liability of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the case of the Property Trustee, in the Trust Indenture Act. (c) No provisions of this Trust Agreement shall be construed to relieve the Property Trustee from liability with respect to matters that are within the authority of the Property Trustee 37 under this Trust Agreement for its own negligent action, negligent failure to act or willful misconduct, except that: (i) the Property Trustee shall not be liable for any error or judgment made in good faith by an authorized officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts; (ii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of at least a Majority in Liquidation Amount of the Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement; (iii) the Property Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Notes and the Payment Account shall be to deal with such Property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement and the Trust Indenture Act; (iv) the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Depositor; and money held by the Property Trustee need not be segregated from other funds held by it except in relation to the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and except to the extent otherwise required by law; and (v) the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Depositor with their respective duties under this Trust Agreement, nor shall the Property Trustee be liable for the default or misconduct of any other Trustee or the Depositor. Section 8.6. Notices of Defaults and Extensions. (a) Within 90 days after the occurrence of a default actually known to the Property Trustee, the Property Trustee shall transmit notice of such default to the Holders, the Administrative Trustees and the Depositor, unless such default shall have been cured or waived; provided, that, except in the case of a default in the payment of the principal of or any premium or interest (including any Additional Interest) on any Trust Security, the Property Trustee shall be fully protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Property Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Trust Securities. For the purpose of this Section, the term "default" means any event that is, or after notice or lapse of time or both would become, an Event of Default with respect to the Trust Securities. For purposes of this section, the term "Responsible Officer," when used with respect to the Property Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive 38 committee of the board off directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any senior trust officer, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Property Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. (b) Within five Business Days after the receipt of notice of the Depositor's exercise of its right to defer the payment of interest on the Notes pursuant to the Indenture, the Property Trustee shall transmit, in the manner and to the extent provided in Section 10.8, notice of such exercise to the Holders and the Administrative Trustees, unless such exercise shall have been revoked. (c) The Property Trustee shall not be deemed to have knowledge of any Event of Default unless the Property Trustee shall have received written notice thereof from the Depositor, any Administrative Trustee or any Holder unless an officer of the Property Trustee charged with the administration of this Trust Agreement shall have obtained actual knowledge of such Event of Default. Section 8.7. Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may rely and shall be protected in acting or refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice (which to the extent practicable shall not be less than two Business Days), the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee 39 shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or wilful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor, the Issuer or any Affiliate of the Depositor or the Issuer, and may include any of its employees) and the advice of such 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 and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any 40 negligence or misconduct on the part of such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence or bad faith on its part, request and rely on an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. Section 8.8. Delegation of Power. Any Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 its, his or her power for the purpose of executing any documents contemplated in Section 2.5. The Trustees shall have power to delegate from time to time to such of their number or to the Depositor the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Trustees or otherwise as the Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of this Trust Agreement. 41 Section 8.9. May Hold Securities. Any Trustee or any other agent of any Trustee or the Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities and, subject to Sections 8.11 and 8.16, and except as provided in the definition of the term "Outstanding" in Article I, may otherwise deal with the Trust with the same rights it would have if it were not a Trustee or such other agent. Section 8.10. Compensation; Reimbursement; Indemnity. The Depositor agrees: (a) to pay to the Trustees from time to time such reasonable compensation for all services rendered by them hereunder as may be agreed by the Depositor and the Trustees from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) to reimburse the Trustees upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustees in accordance with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of their agents and counsel), except any such expense, disbursement or advance as may be attributable to their negligence or bad faith; and (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any officer, director, shareholder, employee or agent of any Trustee and (iv) any employee or agent of the Trust (referred to herein as an "Indemnified Person") from and against any loss, damage, liability, tax (including the reasonable compensation, expenses and disbursements of its counsel and agents) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or the performance of the Trustees' duties hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. No Trustee may claim any Lien on any Trust Property as a result of any amount due pursuant to this Section 8.10. The provisions of this Section 8.10 shall survive the termination of this Trust Agreement and the earlier removal or resignation of any Trustee. Section 8.11. Conflicting Interests. (a) If the Property Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Trust Agreement. 42 (b) The Guarantee Agreement and the Indenture shall be deemed to be specifically described in this Trust Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. Section 8.12. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of any 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 8.13. (b) A Trustee may resign at any time by giving written notice thereof to the Depositor and, in the case of the Property Trustee and the Delaware Trustee, to the Holders. If the instrument of acceptance by the successor Trustee required by Section 8.13 shall not have been delivered to the resigning Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Trust, any court in the State of Delaware for the appointment of a successor Trustee. (c) Unless an Event of Default shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of them, may be removed at any time by Act of the Holder of Common Securities. If an Event of Default shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of them, may be removed at such time by Act of the Holders of at least a Majority in Liquidation Amount of the Preferred Securities, delivered to the removed Trustee (in its individual capacity and on behalf of the Trust). An Administrative Trustee may be removed only by Act of the Holder of the Common Securities at any time. (d) If any Trustee shall resign, be removed or become incapable of acting as Trustee, or if a vacancy shall occur in the office of any Trustee for any reason, at a time when no Event of Default shall have occurred and be continuing, the Holder of the Common Securities, by Act of the Holder of the Common Securities shall promptly appoint a successor Trustee or Trustees, and such successor Trustee and the retiring Trustee shall comply with the applicable requirements of Section 8.13. If the Property Trustee or the Delaware Trustee shall resign, be removed or become incapable of continuing to act as the Property Trustee or the Delaware Trustee, as the case may be, at a time when an Event of Default shall have occurred and be continuing, the Holders of the Preferred Securities, by Act of the Holders of a Majority in Liquidation Amount of the Preferred Securities shall promptly appoint a successor Trustee or Trustees, and such successor Trustee and the retiring Trustee shall comply with the applicable requirements of Section 8.13. If an Administrative Trustee shall resign, be removed or become incapable of acting as Administrative Trustee, at a time when an Event of Default shall have occurred and be continuing, the Holder of the Common Securities by Act of the Holder of Common Securities shall promptly appoint a successor Administrative Trustee and such successor Administrative Trustee and the retiring Administrative Trustee shall comply with the applicable requirements of Section 8.13. If no successor Trustee shall have been so appointed by the Holder of the Common Securities or Holders of the Preferred Securities and accepted appointment in the manner required by Section 8.13, any Holder who has been a Holder of Preferred Securities 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. 43 (e) The Depositor shall give notice of each resignation and each removal of the Property Trustee or the Delaware Trustee and each appointment of a successor Property Trustee or Delaware Trustee to all Holders in the manner provided in Section 10.8. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office if it is the Property Trustee. (f) Notwithstanding the foregoing or any other provision of this Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee who is a natural person dies or becomes, in the opinion of the Holder of Common Securities, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by (i) the unanimous act of the remaining Administrative Trustees if there are at least two of them or (ii) otherwise by the Depositor (with the successor in each case being a Person who satisfies the eligibility requirement for Administrative Trustees or Delaware Trustee, as the case may be, set forth in Sections 8.3 and 8.4). Section 8.13. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee, each successor Trustee with respect to the Trust Securities shall execute and deliver to the Depositor and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective 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; but, on request of the Trust or any successor Trustee such retiring Trustee shall, upon payment of its charges, duly assign, transfer and deliver to such successor Trustee all Trust Property, all proceeds thereof and money held by such retiring Trustee hereunder with respect to the Trust Securities and the Trust. (b) Upon request of any such successor Trustee, the Trust (or the retiring Trustee if requested by the Depositor) 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 the preceding paragraph. (c) 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 8.14. Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Property Trustee or the Delaware Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of such Trustee, shall be the successor of such Trustee hereunder, provided, that such Person 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. 44 Section 8.15. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities Certificates shall be taken as the statements of the Trust and the Depositor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations at to the title to, or value or condition of, the property of the Trust or any part thereof, nor as to the validity or sufficiency of this Trust Agreement, the Notes, any guarantee thereof, if applicable, or the Trust Securities. The Trustees shall not be accountable for the use or application by the Issuer of the proceeds of the Notes. Section 8.16. Preferential Collection of Claims Against Depositor or Trust. If and when the Property Trustee shall be or become a creditor of the Depositor or the Trust (or any other obligor upon the Preferred Securities), the Property Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Depositor or the Trust (or any such other obligor). Section 8.17. Property Trustee May File Proofs of Claim. (a) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Trust or any other obligor upon the Trust Securities or the property of the Trust or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the Trust Securities shall then be due and payable and irrespective of whether the Property Trustee shall have made any demand on the Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Trust Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property 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; and 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 Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee. (b) Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, 45 arrangement adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 8.18. Reports by the Property Trustee. (a) If required by Section 313(a) of the Trust Indenture Act, the Property Trustee shall, within 60 days after each September 15 following the date of this Trust Agreement, transmit to all Holders a brief report, dated as of the immediately preceding September 15, concerning the Property Trustee and its actions under this Trust Agreement pursuant to Section 313(a) of the Trust Indenture Act. (b) The Property Trustee shall transmit to Holders such other reports concerning the Property Trustee and its actions under this Trust Agreement as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Property Trustee with each securities exchange or system upon which the Trust Securities are listed or traded, if any, with the Commission and with the Depositor. The Depositor shall notify the Property Trustee when any Trust Securities are listed or traded on any securities exchange or system. Section 8.19. Reports to the Property Trustee. Each of the Depositor and the Administrative Trustees shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any). The Depositor and the Administrative Trustees shall deliver to the Property Trustee, within 120 days after the end of each fiscal year of the Trust ending after the date of this Trust Agreement, an Officers' Certificate covering the preceding fiscal year, stating whether or not to the knowledge of the signers thereof the Depositor, the Issuer and the Trust are in default in the performance or observance of any of the terms, provisions and conditions of this Trust Agreement (without regard to any period of grace or requirement of notice provided hereunder) and, if the Depositor, the Issuer or the Trust shall be in default, specifying all such defaults and the nature and status thereof of which they have knowledge. Section 8.20. Evidence of Compliance with Conditions Precedent. Each of the Depositor and the Administrative Trustees shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers' Certificate. 46 Section 8.21. Co-Trustees and Separate Trustee. At any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at the time be located, the Depositor and the Administrative Trustees, except in such instances as set forth in the second following sentence, by agreed action of the majority of such Trustees shall have power to appoint, and upon the written request of the Administrative Trustees, the Depositor shall for such purpose join with the Administrative Trustees in the execution, delivery, and performance of all instruments and agreements necessary or proper to appoint, one or more Persons approved by the Property Trustee either to act as co-trustee, jointly with the Property Trustee, of all or any part of such Trust Property, or to the extent required by law to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section 8.21. Any co-trustee or separate trustee appointed pursuant to this Section 8.21 shall either be (i) a natural person who is at least 21 years of age and a resident of the United States, or (ii) a legal entity with its principal place of business in the United States that shall act through one or more persons authorized to bind such entity. If the Depositor does not join in such appointment within 15 days after the receipt by it of a request to do so, or in case an Event of Default under the Indenture shall have occurred and be continuing, the Property Trustee alone shall have the power to make such appointment. Should any written instrument from the Depositor be required by any co- trustee or separate trustee so appointed for more fully confirming to such co- trustee or separate trustee such property, title, right, or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Depositor, provided, however, that, if an Event of Default shall have occurred and be continuing, the Property Trustee may execute any such instrument on behalf of the Depositor as its agent and attorney-in-fact therefor. Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: (a) The Trust Securities shall be executed by one or more Administrative Trustees, and the Trust Securities shall be delivered by the Property Trustee, and all rights, powers, duties, and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Property Trustee specified hereunder shall be exercised solely by the Property Trustee and not by such co-trustee or separate trustee. (b) The rights, powers, duties, and obligations hereby conferred or imposed upon the Property Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Property Trustee or by the Property Trustee and such co-trustee or separate trustee jointly, as shall be provided in the instrument appointing such co- trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Property Trustee shall be incompetent or unqualified to 47 perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or separate trustee. (c) The Property Trustee at any time, by an instrument in writing executed by it, with the written concurrence of the Depositor, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section 8.21, and, in case a Note Event of Default has occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Depositor. Upon the written request of the Property Trustee, the Depositor shall join with the Property Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so resigning or removed may be appointed in the manner provided in this Section 8.21. (d) No co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Property Trustee or any other trustee hereunder. (e) The Property Trustee shall not be liable by reason of any act of a co- trustee or separate trustee. (f) Any Act of Holders delivered to the Property Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee. ARTICLE IX. Termination, Liquidation and Merger Section 9.1. Dissolution Upon Expiration Date. Unless earlier dissolved, the Trust shall automatically dissolve on ___________, (the "Expiration Date"), and the Trust Property shall be liquidated in accordance with Section 9.4. Section 9.2. Early Termination. The first to occur of any of the following events is an "Early Termination Event," upon the occurrence of which the Trust shall be dissolved: (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of, the Depositor, in its capacity as the Holder of the Common Securities, unless the Depositor shall transfer the Common Securities as provided by Section 5.12, in which case this provision shall refer instead to any such successor Holder of the Common Securities, or the Issuer, unless the Issuer shall have assigned its obligations in accordance with Article VIII of the Indenture in which case this provision shall refer instead to any such successor Issuer under the Indenture. (b) the written direction to the Property Trustee from the Holder of the Common Securities at any time to dissolve the Trust and, after satisfaction of any 48 liabilities of the Trust as required by applicable law, to distribute the Notes to Holders in exchange for the Preferred Securities (which direction is optional and wholly within the discretion of the Holder of the Common Securities); (c) the redemption of all of the Preferred Securities in connection with the payment at maturity or redemption of all the Notes; and (d) the entry of an order for dissolution of the Trust by a court of competent jurisdiction. Section 9.3. Termination. The respective obligations and responsibilities of the Trustees and the Trust shall terminate upon the latest to occur of the following: (a) the distribution by the Property Trustee to Holders of all amounts required to be distributed hereunder upon the liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b) the satisfaction of any expenses owed by the Trust; and (c) the discharge of all administrative duties of the Administrative Trustees, including the performance of any tax reporting obligations with respect to the Trust or the Holders. Section 9.4. Liquidation. (a) If an Early Termination Event specified in Section 9.2(a), (b) or (d) occurs or upon the Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously as the Trustees determine to be possible by distributing, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, to each Holder a Like Amount of Notes, subject to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by not less than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust Securities at such Holder's address appearing in the Securities Register. All such notices of liquidation shall: (i) state the Liquidation Date; (ii) state that from and after the Liquidation Date, the Trust Securities will no longer be deemed to be Outstanding and any Securities Certificates not surrendered for exchange will be deemed to represent a Like Amount of Notes; and (iii) provide such information with respect to the mechanics by which Holders may exchange Securities Certificates for Notes, or if Section 9.4(d) applies, receive a Liquidation Distribution, as the Property Trustee shall deem appropriate. (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of the Trust and distribution of the Notes to Holders, the Property Trustee, either itself acting as exchange agent or through the appointment of a separate exchange agent, shall establish a record date for such distribution (which shall be not more than 45 days prior to the Liquidation Date) and, establish such procedures as it shall deem appropriate to effect the distribution of Notes in exchange for the Outstanding Securities Certificates. 49 (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like Amount of Notes will be issued to Holders of Securities Certificates, upon surrender of such Certificates to the exchange agent for exchange, (iii) the Depositor shall use its best efforts to have the Notes listed on the New York Stock Exchange or on such other exchange, interdealer quotation system or self-regulatory organization on which the Preferred Securities are then listed, if any, (iv) Securities Certificates not so surrendered for exchange will be deemed to represent a Like Amount of Notes bearing accrued and unpaid interest in an amount equal to the accumulated and unpaid Distributions on such Securities Certificates until such certificates are so surrendered (and until such certificates are so surrendered, no payments of interest or principal will be made to Holders of Securities Certificates with respect to such Notes) and (v) all rights of Holders holding Trust Securities will cease, except the right of such Holders to receive Notes upon surrender of Securities Certificates. (d) Notwithstanding the other provisions of this Section 9.4, if distribution of the Notes in the manner provided herein is determined by the Property Trustee not to be permitted or practical, the Trust Property shall be liquidated, and the Trust shall be wound-up by the Property Trustee in such manner as the Property Trustee determines. In such event, Holders will be entitled to receive out of the assets of the Trust available for distribution to Holders, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, an amount equal to the Liquidation Amount per Trust Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If, upon any such winding up the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then, subject to the next succeeding sentence, the amounts payable by the Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the Common Securities will be entitled to receive Liquidation Distributions upon any such winding-up pro rata (determined as aforesaid) with Holders of all Trust Securities, except that, if an Event of Default has occurred and is continuing, the Preferred Securities shall have a priority over the Common Securities as provided in Section 4.3. Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust. The Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person except pursuant to this Article IX. At the request of the Holders of the Common Securities, without the consent of the Holders, the Trust may merge with or into, consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to a trust organized as such under the laws of any State; provided, that (a) such successor entity either (i) expressly assumes all of the obligations of the Trust with respect to the Preferred Securities or (ii) substitutes for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor Securities have the same priority as the Preferred Securities with respect to distributions and payments upon liquidation, redemption and otherwise, 50 (b) a trustee of such successor entity possessing substantially the same powers and duties as the Property Trustee is appointed to hold the Notes, (c) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization that then assigns a rating to the Preferred Securities, (d) the Preferred Securities are listed, or any Successor Securities will be listed upon notice of issuance, on any national securities exchange or interdealer quotation system on which the Preferred Securities are then listed, if any, (e) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect, (f) such successor entity has a purpose substantially identical to that of the Trust, (g) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Depositor has received an Opinion of Counsel to the effect that (i) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect and (ii) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor such successor entity will be required to register as an "investment company" under the Investment Company Act and neither the Trust nor the successor entity will be taxable as a corporation or classified as other than a grantor trust for federal income tax purposes, and (h) the Depositor or its permitted transferee owns all of the common securities of such successor entity and guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the Guarantee Agreement [and, if Mutual Group is the Issuer, MRM guarantees the obligations of Mutual Group at least to the extent provided by the Guarantee Agreement]. Notwithstanding the foregoing, the Trust shall not, except with the consent of Holders of all of the Preferred Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other Person or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or the successor entity to be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes or cause the Notes to be treated as other than indebtedness of the Corporation for United States federal income tax purposes. 51 ARTICLE X. Miscellaneous Provisions Section 10.1. Limitation of Rights of Holders. Except as set forth in Section 9.2, the death, bankruptcy, termination, dissolution or incapacity of any Person having an interest, beneficial or otherwise, in Trust Securities shall not operate to terminate this Trust Agreement, nor annul, dissolve or terminate the Trust nor entitle the legal representatives or heirs of such Person or any Holder for such Person, to claim an accounting, take any action or bring any proceeding in any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. Section 10.2. Agreed Tax Treatment of Trust and Trust Securities. The parties hereto and, by its acceptance or acquisition of a Trust Security or a beneficial interest therein the Holder of, and any Person that acquires a beneficial interest in, such Trust Security intend and agree to treat the Trust as a grantor trust for United States federal, state and local tax purposes, and to treat the Trust Securities (including all payments and proceeds with respect to such Trust Securities) as undivided beneficial ownership interests in the Trust Property (and payments and proceeds therefrom, respectively) for United States federal, state and local tax purposes. The provisions of this Trust Agreement shall be interpreted to further this intention and agreement of the parties. Section 10.3. Amendment. (a) This Trust Agreement may be amended from time to time by the Property Trustee, the Administrative Trustees, the Holder of all the Common Securities and the Issuer without the consent of any Holder of the Preferred Securities, (i) to cure any ambiguity, correct or supplement any provision herein that 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 Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement, (ii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Trust will not be taxable as a corporation or will be classified as other than a grantor trust for United States federal income tax purposes at all times that any Trust Securities are Outstanding or to ensure that the Notes are treated as indebtedness of the Depositor for United States federal income tax purposes, or to ensure that the Trust will not be required to register as an "investment company" under the Investment Company Act or (iii) to add to the covenants, restrictions or obligations of the Depositor or the Issuer; provided, that in the case of clauses (i), (ii) or (iii), such action shall not adversely affect in any material respect the interests of any Holder. (b) Except as provided in Section 10.3(c), any provision of this Trust Agreement may be amended by the Property Trustee, the Administrative Trustees, the Holder of all of the Common Securities and the Issuer and with (i) the consent of Holders of at least a Majority in 52 Liquidation Amount of the Preferred Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that such amendment or the exercise of any power granted to the Trustees in accordance with such amendment will not cause the Trust to be taxable as a corporation or classified as other than a grantor trust for United States federal income tax purposes or affect the treatment of the Notes as indebtedness of the Corporation for United States federal income tax purposes or affect the Trust's exemption from status as an "investment company" under the Investment Company Act. (c) Notwithstanding any other provision of this Trust Agreement, without the consent of each Holder, this Trust Agreement may not be amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date, (ii) restrict or impair the right of a Holder to institute suit for the enforcement of any such payment on or after such date, (iii) reduce the percentage of aggregate Liquidation Amount of Outstanding Preferred Securities, the consent of whose Holders is required for any such amendment, or the consent of whose Holders is required for any waiver of compliance with any provision of this Trust Agreement or of defaults hereunder and their consequences provided for in this Trust Agreement or (iv) modify this Section 10.3(c) or Section 6.10(e). (d) Notwithstanding any other provision of this Trust Agreement, no Trustee shall enter into or consent to any amendment to this Trust Agreement that would cause the Trust to be taxable as a corporation or to be classified as other than a grantor trust for United States federal income tax purposes or that would cause the Notes to fail or cease to be treated as indebtedness of the Depositor for United States federal income tax purposes or that would cause the Trust to fail or cease to qualify for the exemption from status as an "investment company" under the Investment Company Act. (e) If any amendment to this Trust Agreement is made, the Administrative Trustees or the Property Trustee shall promptly provide to the Delaware Trustee a copy of such amendment. (f) No Trustee shall be required to enter into any amendment to this Trust Agreement that affects its own rights, duties or immunities under this Trust Agreement. The Trustees shall be entitled to receive an Opinion of Counsel and an Officers' Certificate stating that any amendment to this Trust Agreement is in compliance with this Trust Agreement and all conditions precedent herein provided for relating to such action have been met. (g) No amendment to this Trust Agreement which affects the Delaware Trustee's own rights, duties or immunities under this Trust Agreement shall be effective without the Delaware Trustee's prior written consent thereto. Section 10.4. Payments Due on Non-Business Day. If the date fixed for any payment on any Trust Security shall be a day that is not a Business Day, then such payment need not be made on such date but may be made on the next succeeding day that is a Business Day with the same force and effect as though made on the date 53 fixed for such payment, and no Distributions shall accumulate on such unpaid amount for the period after such date. Section 10.5. Separability. If any provision in this Trust Agreement or in the Securities Certificates 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 10.6. Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR, THE ISSUER AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS ; PROVIDED, HOWEVER, THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. THE PROVISIONS OF SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THIS TRUST. Section 10.7. Successors. This Trust Agreement shall be binding upon and shall inure to the benefit of any successor to the Depositor, the Issuer, the Trust and any Trustee, including any successor by operation of law. Except in connection with a transaction involving the Issuer that is permitted under Article VIII of the Indenture and pursuant to which the assignee agrees in writing to perform the Issuer's obligations hereunder, the Issuer shall not assign its obligations hereunder. Section 10.8. Headings. The Article and Section headings are for convenience only and shall not affect the construction of this Trust Agreement. Section 10.9. Reports, Notices and Demands. (a) Any report, notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon any Holder or the Depositor may be given or served in writing by deposit thereof, first-class postage prepaid, in the United States mail, addressed, (a) in the case of a Holder of Preferred Securities, to such Holder as such Holder's name and address may appear on the Securities Register; and (b) in the case of the Holder of all the Common Securities or the Depositor or the Issuer, to Mutual Group, Ltd., One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, Attention: General Counsel, 54 or to such other address as may be specified in a written notice by the Holder of all the Common Securities or the Depositor or the Issuer, as the case may be, to the Property Trustee. Such notice, demand or other communication to or upon a Holder shall be deemed to have been sufficiently given or made, for all purposes, upon mailing. Such notice, demand or other communication to or upon the Depositor or the Issuer shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Depositor or the Issuer. (b) Any notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon the Property Trustee, the Delaware Trustee, the Administrative Trustees or the Trust shall be given in writing by deposit thereof, first-class postage prepaid, in the U.S. mail, personal delivery or facsimile transmission, addressed to such Person as follows: (a) with respect to the Property Trustee to The Chase Manhattan Bank, 450 West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services, Facsimile no.: ____________; (b) with respect to the Delaware Trustee, to Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801, Attention: Capital Markets Fiduciary Services; (c) with respect to the Administrative Trustees, to them at the address above for notices to the Depositor, marked "Attention: Administrative Trustees of MRM Capital Trust [ ]," and (d) with respect to the Trust, to its principal office specified in Section 2.2, with a copy to the Property Trustee. Such notice, demand or other communication to or upon the Trust, the Property Trustee; the Delaware Trustee or the Administrative Trustees shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Trust, the Property Trustee; the Delaware Trustee or the Administrative Trustees. Section 10.10. Agreement Not to Petition. Each of the Trustees and the Depositor agree for the benefit of the Holders that, until at least one year and one day after the Trust has been terminated in accordance with Article IX, they shall not file, or join in the filing of, a petition against the Trust under any Bankruptcy Law or otherwise join in the commencement of any proceeding against the Trust under any Bankruptcy Law. If the Depositor takes action in violation of this Section 10.9, the Property Trustee agrees, for the benefit of Holders, that at the expense of the Depositor, it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such petition by the Depositor against the Trust or the commencement of such action and raise the defense that the Depositor has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as counsel for the Property Trustee or the Trust may assert. Section 10.11. Trust Indenture Act; Conflict with Trust Indenture Act. (a) This Trust Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of this Trust Agreement and shall, to the extent applicable, be governed by such provisions of the Trust Indenture Act. (b) The Property Trustee shall be the only Trustee that is a trustee for the purposes of the Trust Indenture Act. 55 (c) If any provision hereof limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318(c) thereof, such imposed duties shall control. If any provision of this Trust Agreement modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the provision shall be deemed to apply to this Trust Agreement as so modified or excluded, as the case may be. (d) The application of the Trust Indenture Act to this Trust Agreement shall not affect the nature of the Trust Securities as equity securities representing undivided beneficial interests in the assets of the Trust. [Section 10.12. Submission to Jurisdiction. MRM agrees that any judicial proceedings instituted in relation to any matter arising under this Agreement may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Agreement, MRM hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. MRM also irrevocably and unconditionally waives for the benefit of the Trustees and the Holders any immunity from jurisdiction and any immunity from legal process (whether through services of notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of this Agreement. MRM hereby irrevocably designates and appoints for the benefit of the Trustees and the Holders for the term of this Agreement, CT Corporation, 111 8/th/ Avenue, New York, New York 10011, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to Mutual Risk Management Ltd., 44 Church Street, Hamilton HM 12 Bermuda, Attention: General Counsel), brought against it with respect to any such proceeding in any such court in The City of New York, such service being hereby acknowledged by MRM to be effective and binding service on it in every respect whether or not MRM shall then be doing or shall have at any time done business in New York. Such appointment shall be irrevocable so long as the obligations of MRM hereunder remain outstanding until the appointment of a successor by MRM and such successor's acceptance of such appointment. Upon such acceptance, MRM shall notify the Trustees of the name and address of such successor. MRM further agrees for the benefit of the Trustees and the Holders of the Trust Securities to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said CT Corporation full force and effect so long as the obligations of MRM hereunder shall be outstanding. The Trustees shall not be obligated and shall have no responsibility with respect to any failure by MRM to take any such action. Nothing herein shall affect the right of any Trustee or any Holder to institute proceedings against MRM in the courts of any other jurisdiction or jurisdictions.] IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Trust Agreement as of the day and year first above written. MUTUAL GROUP, LTD. 56 as Depositor By:________________________ Name: Title: [ ] as Issuer By:________________________ Name: Title: CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee By:________________________ Name: Title: THE CHASE MANHATTAN BANK, as Property Trustee By:________________________ Name: Title: Administrative Trustees: ___________________________ ___________________________ ___________________________ 57 Exhibit A CERTIFICATE OF TRUST OF MRM CAPITAL TRUST [ ] This Certificate of Trust of MRM Capital Trust [ ] (the "Trust"), dated _______________________ ______, 2000, is being duly executed and filed on behalf of the Trust by the undersigned, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. (S)3801 et seq.) (the "Act"). 1. Name. The name of the business trust formed by this Certificate ---- of Trust is MRM Capital Trust [ ]. 2. Delaware Trustee. The name and business address of the trustee ---------------- of the Trust with its principal place of business in the State of Delaware are Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust Administration. 3. Effective Date. This Certificate of Trust shall be effective -------------- upon its filing with the Secretary of State of the State of Delaware. IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act. THE CHASE MANHATTAN BANK, not in its individual capacity but solely as trustee By:___________________________ Name: Title: CHASE MANHATTAN BANK DELAWARE, not in its individual capacity but solely as trustee By:___________________________ Name: Title: Exhibit B [FORM OF COMMON SECURITIES CERTIFICATE] THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.12 OF THE TRUST AGREEMENT Certificate Number Number of Common Securities C- Certificate Evidencing Common Securities of MRM Capital Trust [ ] ___% Common Securities (liquidation amount $1,000 per Common Security) MRM Capital Trust [ ], a statutory business trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that Mutual Group, Ltd., a Delaware corporation (the "Holder") is the registered owner of common securities of the Trust representing undivided common beneficial interests in the assets of the Trust and designated the ___% Common Securities (liquidation amount $1,000 per Common Security) (the "Common Securities"). Except in accordance with Section 5.12 of the Trust Agreement (as defined below) the Common Securities are not transferable and any attempted transfer hereof other than in accordance therewith shall be void. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities are set forth in, and this certificate and the Common Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Trust Agreement of the Trust, dated as of ______________ ____, 2000 as the same may be amended from time to time (the "Trust Agreement"), among Mutual Group, Ltd., as Depositor, [Mutual Group, Ltd. or Mutual Risk Management Ltd.], as Issuer, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the Administrative Trustees named therein and the Holders, from time to time, of Trust Securities. The Trust will furnish a copy of the Trust Agreement to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. This Common Securities Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. Terms used but not defined herein have the meanings set forth in the Trust Agreement. B-1 In Witness Whereof, one of the Administrative Trustees of the Trust has executed this certificate this __ day of ___________________, 2000. MRM Capital Trust [ ] By:______________________ Name: Administrative Trustee B-2 Exhibit C [FORM OF PREFERRED SECURITIES CERTIFICATE] [If the Preferred Securities Certificate is to be Evidenced By a Global Preferred Security, insert--This Preferred Securities Certificate is a Global Preferred Security within the meaning of the Trust Agreement hereinafter referred to and is registered in the name of a Depositary or a nominee of a Depositary. This Preferred Securities Certificate is exchangeable for Preferred Securities Certificates registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Trust Agreement and 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, except in the limited circumstances described in the Trust Agreement. Unless this Preferred Security Certificate is presented by an authorized representative of The Depository Trust Company, a New York Corporation ("DTC"), to MRM Capital Trust [ ] or its agent for registration of transfer, exchange or payment, and any Preferred Security Certificate issued is registered in the name of Cede & Co. or such other name as is 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 A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.] C-1 Certificate Number Number of Preferred Securities CUSIP NO. _______________ Certificate Evidencing Preferred Securities of MRM Capital Trust [ ] ____% Preferred Securities (liquidation amount $1,000 per Preferred Security) MRM Capital Trust [ ], a statutory business trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that ___________________________________________________________________ (the "Holder") is the registered owner of ______________________ Preferred Securities of the Trust representing an undivided beneficial interest in the assets of the Trust and designated the MRM Capital Trust [ ] ____% Preferred Securities, (liquidation amount $1,000 per Preferred Security) (the "Preferred Securities"). The Preferred Securities are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.8 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities are set forth in, and this certificate and the Preferred Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended and Restated Trust Agreement of the Trust, dated as of ____________ __, 2000, as the same may be amended from time to time (the "Trust Agreement"), among Mutual Group, Ltd., as Depositor, [Mutual Group, Ltd. or Mutual Risk Management Ltd.], as Issuer, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the Administrative Trustees named therein and the Holders, from time to time, of Trust Securities. The Holder is entitled to the benefits of the Guarantee Agreement entered into by the Issuer and The Chase Manhattan Bank, as Guarantee Trustee, dated as of ____________ __, 2000, as the same may be amended from time to time (the "Guarantee Agreement"), to the extent provided therein [and if Mutual Group, Ltd. is the Issuer, a guarantee by Mutual Risk Management Ltd. of the obligations under the Guarantee Agreement]. The Trust will furnish a copy of the Trust Agreement and the Guarantee Agreement to the Holder without charge upon written request to the Property Trustee at its principal place of business or registered office. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. C-2 This Preferred Securities Certificate shall be governed by and construed in accordance with the laws of the State of Delaware. All capitalized terms used but not defined in this Preferred Securities Certificate are used with the meanings specified in the Trust Agreement, including the Exhibits thereto. In Witness Whereof, one of the Administrative Trustees of the Trust has executed this certificate this __ day of ____________, _____. MRM Capital Trust [ ] By:_______________________ Name: Administrative Trustee C-3 ASSIGNMENT For Value Received, the undersigned assigns and transfers this Preferred Security to: ______________________________________________________________________________ (Insert assignee's social security or tax identification number) ______________________________________________________________________________ ______________________________________________________________________________ (Insert address and zip code of assignee) and irrevocably appoints______________________________________________________ ______________________________________________________________________________ agent to transfer this Preferred Securities Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date: ________________ Signature: ___________________________________________________________________ (Sign exactly as your name appears on the other side of this Preferred Security Certificate) The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15. C-4 EX-4.17 11 FORM GUARANTEE AGREEMENT MRM Exhibit 4.17 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PREFERRED SECURITIES GUARANTEE AGREEMENT BETWEEN MUTUAL RISK MANAGEMENT LTD. AND THE CHASE MANHATTAN BANK, AS GUARANTEE TRUSTEE DATED AS OF___________________ - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS
Page No. -------- ARTICLE I DEFINITIONS AND INTERPRETATIONS SECTION 1.1 Definitions and Interpretations............................. 2 ARTICLE II TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act: Application............................ 6 SECTION 2.2 List of Holders............................................. 6 SECTION 2.3 Reports by the Guarantee Trustee............................ 6 SECTION 2.4 Periodic Reports to the Guarantee Trustee................... 7 SECTION 2.5 Evidence of Compliance with Conditions Precedent............ 7 SECTION 2.6 Events of Default; Waiver................................... 7 SECTION 2.7 Event of Default; Notice.................................... 7 SECTION 2.8 Conflicting Interests....................................... 8 ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of the Guarantee Trustee.................. 8 SECTION 3.2 Certain Rights of the Guarantee Trustee..................... 9 SECTION 3.3 Compensation................................................ 10 SECTION 3.4 Indemnity................................................... 11 ARTICLE IV GUARANTEE TRUSTEE SECTION 4.1 Guarantee Trustee; Eligibility.............................. 11 SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees.. 12
ii ARTICLE V GUARANTEE SECTION 5.1 Guarantee............................................. 12 SECTION 5.2 Waiver of Notice and Demand........................... 12 SECTION 5.3 Obligations Not Affected.............................. 13 SECTION 5.4 Rights of Holders..................................... 14 SECTION 5.5 Guarantee of Payment.................................. 14 SECTION 5.6 Subrogation........................................... 14 SECTION 5.7 Independent Obligations............................... 15 SECTION 5.8 Net Payments.......................................... 15 ARTICLE VI LIMITATION OF TRANSACTIONS; RANKING SECTION 6.1 Limitation of Transactions............................ 16 SECTION 6.2 Ranking............................................... 17 SECTION 6.3 Pari Passu Guarantees................................. 17 ARTICLE VII TERMINATION SECTION 7.1 Termination........................................... 18 ARTICLE VIII MISCELLANEOUS SECTION 8.1 Successors and Assigns................................ 18 SECTION 8.2 Amendments............................................ 18 SECTION 8.3 Notices............................................... 18 SECTION 8.4 Benefit............................................... 20 SECTION 8.5 Governing Law......................................... 20 SECTION 8.6 Submission to Jurisdiction............................ 20 SECTION 8.7 Counterparts.......................................... 21
iii PREFERRED SECURITIES GUARANTEE AGREEMENT This GUARANTEE AGREEMENT, dated as of ________________________, is executed and delivered by Mutual Risk Management Ltd., a Bermuda corporation (the "Guarantor"), having its principal place of business at 44 Church Street, Hamilton HM 12 Bermuda, and The Chase Manhattan Bank, having a corporate trust office at 450 West 33rd Street, New York, New York, 10001, as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Preferred Securities (as defined herein) of MRM Capital Trust [ ], a Delaware statutory business trust (the "Issuer"). WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of ______________, among the Trustees named therein, Mutual Group Ltd., a Delaware corporation, as depositor (in such capacity, the "Depositor"), the Guarantor, as Note issuer, and the Holders from time to time of undivided beneficial interests in the assets of the Issuer (as amended from time to time, the "Trust Agreement"), the Issuer is issuing on the date hereof $___________ ($___________ if the Underwriters' over-allotment option pursuant to the Underwriting Agreement is exercised in full), aggregate liquidation preference of its _____% preferred securities (liquidation preference $1,000 per preferred security) (the "Preferred Securities") representing preferred undivided beneficial interests in the assets of the Issuer and having the terms set forth in the Trust Agreement; WHEREAS, the Preferred Securities will be issued by the Issuer and the proceeds thereof, together with the proceeds from the issuance of the Issuer's Common Securities (as defined herein), will be used to purchase the Notes (as defined herein) of Mutual Risk Management (in its capacity as issuer of the Notes, the "Note Issuer"), which will be deposited with The Chase Manhattan Bank, as Property Trustee under the Trust Agreement, as trust assets; and WHEREAS, as incentive for the Holders to purchase the Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee Agreement, to pay to the Holders of the Preferred Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the Holders from time to time of the Preferred Securities. ARTICLE I DEFINITIONS AND INTERPRETATIONS SECTION 1.1 Definitions and Interpretations In this Guarantee Agreement, unless the context otherwise requires: (a) capitalized terms used in this Guarantee Agreement, but not defined in the preamble hereto have the respective meanings assigned to them in this Section 1.1 or in the Trust Agreement, as the case may be; (b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout; (c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Preferred Securities Guarantee Agreement as modified, supplemented or amended from time to time; (d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement, unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement, unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires; (f) a reference to the singular includes the plural and vice versa; and (g) the masculine, feminine, or neuter genders used herein shall include the masculine, feminine and neuter genders. "Additional Amounts" means any additional amounts which are required hereby or by the Notes, under circumstances specified herein or therein, to be paid by the Guarantor in respect of certain taxes, assessments or other governmental charges imposed on Holders specified therein and which are owing to such Holders. "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; provided, however, that the Issuer shall not be deemed to be an Affiliate of the Guarantor. For the purpose 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. 2 "Common Securities" means the securities representing common undivided beneficial interests in the assets of the Issuer. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Guarantee Agreement; provided, that except with respect to a default in payment of any Guarantee Payments, the Guarantor shall have received notice of default from the Guarantee Trustee and shall not have cured such default within 60 days after receipt of such notice. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Preferred Securities, to the extent not paid or made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as defined in the Trust Agreement) that are required to be paid on such Preferred Securities, to the extent the Issuer shall have funds on hand available therefor at such time, (ii) the redemption price, including all accumulated and unpaid Distributions to the date of redemption (the "Redemption Price") with respect to Preferred Securities called for redemption by the Issuer, to the extent the Issuer shall have funds on hand available therefor at such time and (iii) upon a voluntary or involuntary dissolution, winding-up or liquidation of the Issuer, unless Notes are distributed to the Holders, the lesser of (a) the aggregate of the liquidation preference of $1,000 per Preferred Security plus accumulated and unpaid Distributions on the Preferred Securities to the date of payment, to the extent the Issuer shall have funds on hand available to make such payment at such time and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer (in either case, the "Liquidation Distribution"). "Guarantee Trustee" means The Chase Manhattan Bank, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement and thereafter means each such Successor Guarantee Trustee. "Holder" shall mean any holder, as registered on the books and records of the Issuer, of any Preferred Securities; provided, that in determining whether the holders of the requisite percentage of Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor, the Depositor, the Guarantee Trustee or any Affiliate of the Guarantor, the Depositor or the Guarantee Trustee. "Indebtedness" means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent and without duplication, (i) every obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable); (v) every capital lease obligation of such Person; (vi) every obligation of such Person pursuant to derivative products, including interest rate, foreign exchange rate and commodity 3 forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any obligation of the type referred to in clauses (i) through (vii). "Indenture" means the Junior Subordinated Indenture dated as of ________________ between the Note Issuer and The Chase Manhattan Bank, as trustee, and any indenture supplemental thereto pursuant to which the Notes are to be issued to the Property Trustee of the Issuer. "List of Holders" has the meaning specified in Section 2.2(a). "Majority in liquidation preference of the Preferred Securities" means, except as provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a class, of more than 50% of the liquidation preference of all then outstanding Preferred Securities issued by the Issuer. "Notes" means the series of subordinated debt securities of the Note Issuer designated the _____% Junior Subordinated Deferrable Interest Notes due ____ held by the Property Trustee. "Officer's Certificate" means, with respect to any Person, a certificate signed by the Chairman of the Board of Directors, a Vice Chairman, the President, any Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of such Person, and delivered to the Guarantee Trustee. Any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement (other than pursuant to Section 2.4) shall include: (a) a statement that the officer signing the Officer's Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officer's Certificate; (c) a statement that such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association or government or any agency or political subdivision thereof, or any other entity of whatever nature. 4 "Responsible Officer," when used with respect to the Guarantee Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any senior trust officer, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Guarantee Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Senior Indebtedness" means, with respect to any Person, the principal of, any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person whether or not such claim for post-petition interest is allowed in such proceeding) and other amounts in respect of all Indebtedness of such Person, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior in right of payment to this Guarantee Agreement or to other Indebtedness that is pari passu with, or subordinated to, this Guarantee Agreement, provided, that Senior Indebtedness shall not be deemed to include (a) Indebtedness under this Guarantee Agreement, (b) any Indebtedness of such Person that, when incurred and without respect to any election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to such Person, (c) any Indebtedness of such Person to any of its Subsidiaries, (d) any Indebtedness of such Person to any employee of such Person, and (e) trade accounts payable of such Person. "Subsidiary" means, in respect of any Person, a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries, or by such Person and one or more other Subsidiaries. For purposes of this definition, "voting stock" means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended. "Underwriting Agreement" means an underwriting agreement, purchase agreement or placement agreement executed and delivered by the Issuer, the Guarantor and the underwriters named therein. 5 ARTICLE II TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act: Application (a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of this Guarantee Agreement and shall, to the extent applicable, be governed by such provisions. If any provision of this Guarantee Agreement 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 this Guarantee Agreement as so modified or to be excluded, as the case may be. (b) If any provision of this Guarantee Agreement limits, qualifies or conflicts with any duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act by Section 318(c) thereof, such required provision shall control. SECTION 2.2 List of Holders (a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (i) 15 days after each Regular Record Date (as defined in the Indenture), a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of the applicable date, and (ii) at such other times as the Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Guarantor and is not identical to a previously supplied list of Holders or has not otherwise been received by the Guarantee Trustee in its capacity as such or in its capacity as Security Registrar (as defined in the Indenture). The Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Guarantee Trustee shall comply with its obligations under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act. SECTION 2.3 Reports by the Guarantee Trustee If required by Section 313(a) of the Trust Indenture Act, the Guarantee Trustee shall, within 60 days after each September 15 following the date of this Guarantee Agreement deliver to the Holders a brief report dated as of such September 15, which complies with the provisions of Section 313(a). The Guarantee Trustee shall also comply with the other requirements of Section 313 of the Trust Indenture Act. 6 SECTION 2.4 Periodic Reports to the Guarantee Trustee The Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange Commission and the Holders, such documents, reports and information, if any, as required by Section 314 of the Trust Indenture Act and the compliance certificate required by Section 314 of the Trust Indenture Act, in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act, such compliance certificate to be provided within 120 days of the end of each fiscal year of the Guarantor. SECTION 2.5 Evidence of Compliance with Conditions Precedent The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such conditions precedent, if any, provided for in this Guarantee Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officer's Certificate. SECTION 2.6 Events of Default; Waiver The Holders of a Majority in liquidation preference of the Preferred Securities may, by vote, on behalf of all Holders, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon. SECTION 2.7 Event of Default; Notice (a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders, notices of all such Events of Default, unless such defaults have been cured or waived before the giving of such notice, provided, that except in the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as a the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders. (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer of the Guarantee Trustee charged with the administration of the Trust Agreement shall have obtained written notice, of such Event of Default from the Guarantor or a Holder. 7 SECTION 2.8 Conflicting Interests The Trust Agreement shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of the Guarantee Trustee (a) The rights, immunities, duties and responsibilities of the Guarantee Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any finan cial 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. Whether or not therein expressly so provided, every provision of this Guarantee Agreement relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section. (b) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except a Holder exercising his or her rights pursuant to Section 5.4(d) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (c) Without limiting the effect of the first sentence of Section 3.1(a), no provision of this Guarantee Agreement shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its negligent failure to act or its own bad faith or willful misconduct, except that: (i) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; and (ii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in liquidation preference of the Preferred Securities relating to 8 the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement. (d) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall be entitled to enforce this Guarantee for the benefit of the Holders. SECTION 3.2 Certain Rights of the Guarantee Trustee (a) Subject to the provisions of Section 3.1: (i) The Guarantee Trustee may rely upon, 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 paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officer's Certificate of the Guarantor, unless otherwise prescribed herein. (iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor. (iv) The Guarantee Trustee may consult with competent legal counsel, and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Guarantor or any of its Affiliates and may include any of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee Agreement from any court of competent jurisdiction. (v) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder, unless such Holder shall have provided to the Guarantee Trustee reasonable security and indemnity against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee. 9 (vi) The Guarantee 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 paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. (vii) The Guarantee 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 Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder. (viii) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the Holders, and the signature of the Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Guarantee Agreement, both of which shall be conclusively evidenced by the Guarantee Trustee's or its agent's taking such action. (ix) Whenever in the administration of this Guarantee Agreement the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders of a Majority in liquidation preference of the Preferred Securities, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (C) shall be protected in acting in accordance with such instructions. (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to act in accordance with such power and authority. SECTION 3.3 Compensation The Guarantor agrees to pay the Guarantee Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and to reimburse the Guarantee Trustee upon request for all reasonable expenses, disbursements and advances (including the reasonable fees and expenses of its attorneys and agents) incurred or made by the Guarantee Trustee in accordance with any provision of this Guarantee Agreement. 10 The provisions of this Section 3.3 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee. SECTION 3.4 Indemnity The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Guarantee Trustee, arising out of or in connection with the acceptance or administration of this Guarantee Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Guarantee Trustee will not claim or exact any lien or charge on any Guarantee Payments as a result of any amount due to it under this Guarantee Agreement. The provisions of this Section 3.4 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee. ARTICLE IV GUARANTEE TRUSTEE SECTION 4.1 Guarantee Trustee; Eligibility (a) There shall at all times be a Guarantee Trustee which shall: (i) not be an Affiliate of the Guarantor; and (ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital of at least 50 million U.S. dollars ($50,000,000), and shall be a corporation meeting the requirements of Section 310(a) of the Trust Indenture Act. If such corporation publishes reports of condition at least annually pursuant to law or to the requirements of the supervising or examining authority then, for the purposes of this Section 4.1(a)(ii), 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. (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2(c). (c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act, subject to the penultimate paragraph thereof. 11 SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees (a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed with or without cause at any time by the Guarantor. (b) The Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor. (c) The Guarantee Trustee appointed to office shall hold office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee. (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 30 days after delivery to the Guarantor of an instrument of resignation, the resigning Guarantee Trustee may petition any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee. ARTICLE V GUARANTEE SECTION 5.1 Guarantee The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer), as and when due, regardless of any defense, right of set-off or counterclaim that the Issuer may have or assert, other then the defense of payment. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer, through the Note Issuer, to pay such amounts to the Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee in the event it makes any direct payment hereunder. SECTION 5.2 Waiver of Notice and Demand 12 The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 5.3 Obligations Not Affected The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the Preferred Securities to be performed or observed by the Issuer; (b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Preferred Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Notes or so provided by the Indenture); (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Preferred Securities, or any action on the part of the Issuer granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of indebtedness of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any invalidity of, or defect or deficiency in, the Preferred Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. 13 There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing. SECTION 5.4 Rights of Holders The Guarantor expressly acknowledges that: (a) this Guarantee Agreement will be deposited with the Guarantee Trustee to be held for the benefit of the Holders; (b) the Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders; (c) the Holders of a Majority in liquidation preference of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee Agreement or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; provided, however, that, subject to Section 3.1, the Guarantee Trustee shall have the right to decline to follow any such direction if the Guarantee Trustee being advised by counsel determines that the action so directed may not lawfully be taken, or if the Guarantee Trustee in good faith shall, by a Responsible Officer or Officers of the Guarantee Trustee, determine that the proceedings so directed would be illegal or involve it in personal liability or be unduly prejudicial to the rights of the Holders not party to such direction, and provided, further, that nothing in this Guarantee Agreement shall impair the right of the Guarantee Trustee to take any action deemed proper by the Guarantee Trustee and which is not inconsistent with such direction; and (d) any Holder may, to the extent permitted by law, institute a legal proceeding directly against the Guarantor to enforce its rights under this Guarantee Agreement, without first instituting a legal proceeding against the Guarantee Trustee, the Issuer, the Note Issuer or any other Person. The Guarantor waives any right or remedy to require that any such action on this Guarantee Agreement be brought first against the Issuer or any other Person or entity before so proceeding directly against the Guarantor. SECTION 5.5 Guarantee of Payment This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication of amounts theretofore paid by the Issuer) or upon distribution of Notes to Holders as provided in the Trust Agreement. SECTION 5.6 Subrogation The Guarantor shall be subrogated to all rights, if any, of the Holders against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this Guarantee Agreement; provided, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the 14 preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. SECTION 5.7 Independent Obligations The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Preferred Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof. SECTION 5.8 Net Payments. All payments required to be made hereunder by the Guarantor shall be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which the Guarantor is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If any withholding or deduction at source is required, the Guarantor shall, subject to the limitations and exceptions set forth below, pay to the Holder of any Preferred Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in this Guarantee Agreement to be then due and payable (the "Additional Amounts"); provided, that the Guarantor shall not be required to make payment of such Additional Amounts for or on account of: (1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder or the Owner of such Preferred Security: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or therein or otherwise had some connection with the relevant taxing jurisdiction or any political subdivision thereof or therein other than by reason of the mere ownership of, or receipt of payment under, such Preferred Security or this Guarantee Agreement; (B) presented such Preferred Security for payment in the relevant taxing jurisdiction or any political subdivision thereof or therein, unless such Preferred Security could not have been presented for payment 15 elsewhere; or (C) presented such Preferred Security more than thirty (30) days after the date on which the payment in respect of such Preferred Security first became due and payable, except to the extent that such Holder would have been entitled to such Additional Amounts if it had presented such Preferred Security for payment on any day within such period of thirty (30) days; (2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or (3) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by such Holder or such Owner to comply, within 90 days, with any reasonable request by the Guarantor addressed to such Holder or such Owner (A) to provide information concerning the nationality, residence or identity of such Holder or such Owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; nor shall Additional Amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Preferred Security to any Holder where the Owner of such Preferred Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or partner of such partnership who would not have been entitled to such Additional Amounts had it been the Holder of the Preferred Security. All references in this Guarantee Agreement to Guarantee Payments shall include any Additional Amounts payable by the Guarantor in respect of such Guarantee Payments. In administering the provisions of this Section, the Guarantee Trustee shall be entitled to rely on, and the Guarantor agrees to provide to it, the certifications provided to the Note Trustee under Section 10.5(c) of the Indenture. The Guarantee Trustee shall be entitled to the same indemnity available to the Note Trustee under the last sentence of said Section 10.5(c). ARTICLE VI LIMITATION OF TRANSACTIONS; RANKING SECTION 6.1 Limitation of Transactions 16 The Guarantor covenants and agrees that it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the capital stock of the Guarantor or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Guarantor that rank pari passu in all respects with or junior in interest to the Notes (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Guarantor (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the capital stock of the Guarantor (or any capital stock of a Subsidiary of the Guarantor), for any class or series of the capital stock of the Guarantor or of any class or series of the indebtedness of the Guarantor for any class or series of the capital stock of the Guarantor, (C) the purchase of fractional interests in shares of the capital stock of the Guarantor pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock), if at such time the Guarantor shall have given notice of its election to begin an Extension Period with respect to the Notes as provided in the Indenture and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. SECTION 6.2 Ranking This Guarantee Agreement will constitute an unsecured obligation of the Guarantor and will rank subordinate and junior in right of payment to all Senior Indebtedness of the Guarantor. The obligations of the Guarantor under this Guarantee Agreement do not constitute Senior Debt (as defined in the Indenture). SECTION 6.3 Pari Passu Guarantees This Guarantee Agreement shall rank pari passu with any similar guarantee agreements issued by the Guarantor on behalf of holders of preferred securities of any other Trust (as defined in the Indenture) or any trust, partnership or other entity affiliated with the Guarantor which is a financing vehicle of the Guarantor or any Affiliate of the Guarantor in connection with the issuance by such entity of preferred securities or other securities which are similar to preferred securities that are guaranteed by the Guarantor pursuant to an instrument that ranks pari passu with or junior in right of payment to this Guarantee Agreement. 17 ARTICLE VII TERMINATION SECTION 7.1 Termination This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full payment of the Redemption Price of all Preferred Securities, (ii) the distribution of the Notes to all Holders in exchange for the Preferred Securities or (iii) full payment of the amounts payable in accordance with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder must restore payment of any sums paid with respect to the Preferred Securities or under this Guarantee Agreement. The obligations of the Guarantor under Sections 3.3 and 3.4 shall survive any such termination. ARTICLE VII MISCELLANEOUS SECTION 8.1 Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Preferred Securities then outstanding. Except in connection with a consolidation, amalgamation or merger or conveyance, transfer or lease involving the Guarantor that is permitted under Article VIII of the Indenture and pursuant to which the assignee agrees in writing to perform the Guarantor's obligations hereunder, the Guarantor shall not assign its obligations hereunder. SECTION 8.2 Amendments Except with respect to any changes that do not adversely affect the rights of Holders in any material respect (in which case no consent of Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of at least a Majority in liquidation preference of the Preferred Securities. The provisions of Article VI of the Trust Agreement concerning meetings of Holders apply to the giving of such approval. SECTION 8.3 Notices Any notice, request or other communication required or permitted to be given hereunder shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows: 18 (a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing address or facsimile number set forth below (or such other address or facsimile number as the Guarantee Trustee may give notice of to the Guarantor and the Holders): The Chase Manhattan Bank 450 West 33rd Street New York, New York 10001 Attention: Capital Markets Fiduciary Services Facsimile No.: (212) 946-____ (b) If given to the Guarantor, at the Guarantor's mailing address or facsimile number set forth below (or such other address or facsimile number as the Guarantor may give notice of to the Guarantee Trustee and the Holders): Mutual Risk Management, Ltd. 44 Church Street Hamilton HMI2 Bermuda Attn: General Counsel and Secretary Facsimile No.: (441) 295-1867 (c) If given to the Issuer, at the Issuer's (and the Guarantee Trustee's) address or facsimile number set forth below or such other address or facsimile number as the Issuer or the Guarantee Trustee may give notice to the Guarantee Trustee (if given by the Issuer) and the Holders: MRM Capital Trust [ ] Mutual Group, Ltd. One Logan Square Suite 1500 Philadelphia, Pennsylvania 19103 Attn: General Counsel and Secretary Facsimile No.: (215) 963-1610 with a copy to: The Chase Manhattan Bank 450 West 33rd Street New York, New York 10001 Attention: Capital Markets Fiduciary Services Facsimile No.: (212) 946-____ (d) If given to any Holder, at the address set forth on the books and records of the Issuer. 19 All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 8.4 Benefit This Guarantee Agreement is solely for the benefit of the Holders and is not separately transferable from the Preferred Securities. SECTION 8.5 Governing Law THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SECTION 8.6 Submission to Jurisdiction The Guarantor agrees that any judicial proceedings instituted in relation to any matter arising under this Guarantee Agreement may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. The Guarantor also irrevocably and unconditionally waives for the benefit of the Guarantee Trustee and the Holders any immunity from jurisdiction and any immunity from legal process (whether through service of notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of this Guarantee Agreement. The Guarantor hereby irrevocably designates and appoints for the benefit of the Guarantee Trustee and the Holders for the term of this Guarantee Agreement CT Corporation, 111 8th Avenue, New York, New York 10011, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to Richard E. O'Brien, Senior Vice President and General Counsel, Mutual Risk Management Ltd., 44 Church Street, Hamilton, HM 12, Bermuda) brought against it with respect to any such proceeding in any such court in The City of New York, such service being hereby acknowledged by the Guarantor to be effective and binding service on it in every respect whether or not the Guarantor shall then be doing or shall have at any time done business in New York. Such appointment shall be irrevocable so long as any of the Preferred Securities or the obligations of the Guarantor hereunder remain outstanding, or until the appointment of a successor by the Guarantor and such successor's acceptance of such appointment. Upon such acceptance, the Guarantor shall notify the Guarantee Trustee of the name and address of such successor. The Guarantor further agrees for the benefit of the Guarantee Trustee and the Holders to take any and all action, including the 20 execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation in full force and effect so long as any of the Preferred Securities or the obligations of the Guarantor hereunder shall be outstanding. The Guarantee Trustee shall not be obligated and shall have no responsibility with respect to any failure by the Guarantor to take any such action. Nothing herein shall affect the right to serve process in any other manner permitted by any law or limit the right of the Guarantee Trustee or any Holder to institute proceedings against the Guarantor in the courts of any other jurisdiction or jurisdictions. SECTION 8.7 Counterparts 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. 21 THIS PREFERRED SECURITIES GUARANTEE AGREEMENT is executed as of the day and year first above written. MUTUAL RISK MANAGEMENT LTD. By:_____________________________________ Name:___________________________________ Title:__________________________________ THE CHASE MANHATTAN BANK, as Guarantee Trustee By:_____________________________________ Name:___________________________________ Title:__________________________________ 22 EX-4.18 12 FORM GUARANTEE AGREEMENT OF MUTUAL GROUP Exhibit 4.18 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PREFERRED SECURITIES GUARANTEE AGREEMENT AMONG MUTUAL GROUP, LTD., MUTUAL RISK MANAGEMENT LTD. AND THE CHASE MANHATTAN BANK, AS GUARANTEE TRUSTEE DATED AS OF___________________ - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- TABLE OF CONTENTS
Page No. ------- ARTICLE I DEFINITIONS AND INTERPRETATIONS SECTION 1.1 Definitions and Interpretations................................................................. 2 ARTICLE II TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act: Application................................................................ 6 SECTION 2.2 List of Holders................................................................................. 6 SECTION 2.3 Reports by the Guarantee Trustee................................................................ 7 SECTION 2.4 Periodic Reports to the Guarantee Trustee....................................................... 7 SECTION 2.6 Events of Default; Waiver....................................................................... 7 SECTION 2.7 Event of Default; Notice........................................................................ 8 SECTION 2.8 Conflicting Interests........................................................................... 8 ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of the Guarantee Trustee...................................................... 8 SECTION 3.2 Certain Rights of the Guarantee Trustee......................................................... 9 SECTION 3.3 Compensation.................................................................................... 11 SECTION 3.4 Indemnity....................................................................................... 11 ARTICLE IV GUARANTEE TRUSTEE SECTION 4.1 Guarantee Trustee; Eligibility.................................................................. 12 SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees...................................... 12
ii ARTICLE V MUTUAL GROUP LTD. GUARANTEE SECTION 5.1 Mutual Group Ltd. Guarantee......................................................................... 13 SECTION 5.2 Waiver of Notice and Demand......................................................................... 13 SECTION 5.3 Obligations Not Affected............................................................................ 13 SECTION 5.4 Rights of Holders................................................................................... 14 SECTION 5.5 Guarantee of Payment................................................................................ 15 SECTION 5.6 Subrogation......................................................................................... 15 SECTION 5.7 Independent Obligations............................................................................. 15 ARTICLE VI LIMITATION OF TRANSACTIONS; RANKING SECTION 6.1 Limitation of Transactions.......................................................................... 16 SECTION 6.2 Ranking............................................................................................. 16 SECTION 6.3 Pari Passu Guarantees............................................................................... 17 ARTICLE VII MRM GUARANTEE SECTION 7.1 MRM Guarantee....................................................................................... 17 SECTION 7.2 Waiver of Notice and Demand......................................................................... 17 SECTION 7.3 Obligations Not Affected............................................................................ 18 SECTION 7.4 Rights of Holders................................................................................... 19 SECTION 7.5 Guarantee of Payment................................................................................ 19 SECTION 7.6 Subrogation......................................................................................... 19 SECTION 7.7 Independent Obligations............................................................................. 20 SECTION 7.8 Net Payments........................................................................................ 20 ARTICLE VIII RANKING OF MRM GUARANTEE SECTION 8.1 Ranking............................................................................................. 22 SECTION 8.2 Pari Passu Guarantees............................................................................... 22
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ARTICLE IX TERMINATION SECTION 9.1 Termination........................................................................................ 22 ARTICLE X MISCELLANEOUS SECTION 10.1 Successors and Assigns............................................................................. 23 SECTION 10.2 Amendments ........................................................................................ 23 SECTION 10.3 Notices............................................................................................ 23 SECTION 10.4 Benefit............................................................................................ 25 SECTION 10.5 Governing Law...................................................................................... 25 SECTION 10.6 Submission to Jurisdiction......................................................................... 25
iv PREFERRED SECURITIES GUARANTEE AGREEMENT This GUARANTEE AGREEMENT, dated as of ________________________, is executed and delivered by Mutual Group, Ltd., a Delaware corporation (the "Guarantor"), having its principal executive offices at One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19102, Mutual Risk Management Ltd., a Bermuda corporation ("MRM"), having its principal place of business at 44 Church Street, Hamilton HM 12 Bermuda, and The Chase Manhattan Bank, having a corporate trust office at 450 West 33rd Street, New York, New York, 10001, as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Preferred Securities (as defined herein) of MRM Capital Trust [ ], a Delaware statutory business trust (the "Issuer"). WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of ______________, among the Trustees named therein, the Guarantor, as depositor (in such capacity, the "Depositor"), the Guarantor, as Note Issuer, and the Holders from time to time of undivided beneficial interests in the assets of the Issuer (as amended from time to time, the "Trust Agreement"), the Issuer is issuing on the date hereof $___________ ($___________ if the Underwriters' over- allotment option pursuant to the Underwriting Agreement is exercised in full), aggregate liquidation preference of its _____% preferred securities (liquidation preference $1,000 per preferred security) (the "Preferred Securities") representing preferred undivided beneficial interests in the assets of the Issuer and having the terms set forth in the Trust Agreement; WHEREAS, the Preferred Securities will be issued by the Issuer and the proceeds thereof, together with the proceeds from the issuance of the Issuer's Common Securities (as defined herein), will be used to purchase the Notes (as defined herein) of Mutual Group, Ltd. (in its capacity as issuer of the Notes, the "Note Issuer"), which will be deposited with The Chase Manhattan Bank, as Property Trustee under the Trust Agreement, as trust assets; WHEREAS, as incentive for the Holders to purchase the Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee Agreement, to pay to the Holders of the Preferred Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein; and WHEREAS, as incentive for the Holders to purchase the Preferred Securities, MRM desires irrevocably and unconditionally to guarantee, to the extent set forth in this Guarantee Agreement, the due and punctual payment of the Guarantee Payments on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor and which purchase MRM hereby agrees shall benefit MRM, the Guarantor and MRM each execute and deliver this Guarantee Agreement for the benefit of the Holders from time to time of the Preferred Securities. ARTICLE I DEFINITIONS AND INTERPRETATIONS SECTION 1.1 Definitions and Interpretations In this Guarantee Agreement, unless the context otherwise requires: (a) capitalized terms used in this Guarantee Agreement, but not defined in the preamble hereto have the respective meanings assigned to them in this Section 1.1 or in the Trust Agreement, as the case may be; (b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout; (c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Preferred Securities Guarantee Agreement as modified, supplemented or amended from time to time; (d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement, unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement, unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires; (f) a reference to the singular includes the plural and vice versa; and (g) the masculine, feminine, or neuter genders used herein shall include the masculine, feminine and neuter genders. "Additional Amounts" means any additional amounts which are required hereby or by the Note Guarantee, under circumstances specified herein or therein, to be paid by MRM in respect of certain taxes, assessments or other governmental charges imposed on Holders specified therein and which are owing to such Holders. "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 2 Person; provided, however, that the Issuer shall not be deemed to be an Affiliate of the Guarantor or MRM. For the purpose 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. "Common Securities" means the securities representing common undivided beneficial interests in the assets of the Issuer. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Guarantee Agreement; provided, that except with respect to a default in payment of any Guarantee Payments, the Guarantor shall have received notice of default from the Guarantee Trustee and shall not have cured such default within 60 days after receipt of such notice. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Preferred Securities, to the extent not paid or made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as defined in the Trust Agreement) that are required to be paid on such Preferred Securities, to the extent the Issuer shall have funds on hand available therefor at such time, (ii) the redemption price, including all accumulated and unpaid Distributions to the date of redemption (the "Redemption Price") with respect to Preferred Securities called for redemption by the Issuer, to the extent the Issuer shall have funds on hand available therefor at such time and (iii) upon a voluntary or involuntary dissolution, winding-up or liquidation of the Issuer, unless Notes are distributed to the Holders, the lesser of (a) the aggregate of the liquidation preference of $1,000 per Preferred Security plus accumulated and unpaid Distributions on the Preferred Securities to the date of payment, to the extent the Issuer shall have funds on hand available to make such payment at such time and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer (in either case, the "Liquidation Distribution"). "Guarantee Trustee" means The Chase Manhattan Bank, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement and thereafter means each such Successor Guarantee Trustee. "Holder" shall mean any holder, as registered on the books and records of the Issuer, of any Preferred Securities; provided, that in determining whether the holders of the requisite percentage of Preferred Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor, the Depositor, MRM, the Guarantee Trustee or any Affiliate of the Guarantor, the Depositor, MRM or the Guarantee Trustee. "Indebtedness" means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent and without duplication, (i) every 3 obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable); (v) every capital lease obligation of such Person; (vi) every obligation of such Person pursuant to derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any obligation of the type referred to in clauses (i) through (vii). "Indenture" means the Junior Subordinated Indenture dated as of ___________ _____ among the Note Issuer, the Note Guarantor and The Chase Manhattan Bank, as trustee, and any indenture supplemental thereto pursuant to which the Notes and the Note Guarantee are to be issued to the Property Trustee of the Issuer. "List of Holders" has the meaning specified in Section 2.2(a). "Majority in liquidation preference of the Preferred Securities" means, except as provided by the Trust Indenture Act, a vote by Holder(s), voting separately as a class, of more than 50% of the liquidation preference of all then outstanding Preferred Securities issued by the Issuer. "Note Guarantee" means the full and unconditional guarantee and indemnity of the Note Guarantor provided for in the Indenture with respect to the Notes. "Note Guarantor" means Mutual Risk Management, Ltd., in its capacity as guarantor of the Notes under the Indenture. "Notes" means the series of subordinated debt securities of the Note Issuer designated the _____% Junior Subordinated Deferrable Interest Notes due ____ held by the Property Trustee. "Officer's Certificate" means, with respect to any Person, a certificate signed by the Chairman of the Board of Directors, a Vice Chairman, the President, any Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of such Person, and delivered to the Guarantee Trustee. Any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement (other than pursuant to Section 2.4) shall include: 4 (a) a statement that the officer signing the Officer's Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officer's Certificate; (c) a statement that such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Responsible Officer," when used with respect to the Guarantee Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any senior trust officer, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Guarantee Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Senior Indebtedness" means, with respect to any Person, the principal of, any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person whether or not such claim for post-petition interest is allowed in such proceeding) and other amounts in respect of all Indebtedness of such Person, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior in right of payment to this Guarantee Agreement or to other Indebtedness that is pari passu with, or subordinated to, this Guarantee Agreement, provided, that Senior Indebtedness shall not be deemed to include (a) Indebtedness under this Guarantee Agreement, (b) any Indebtedness of such Person that, when incurred and without respect to any election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to such Person, (c) any Indebtedness of such Person to any of its Subsidiaries, 5 (d) any Indebtedness of such Person to any employee of such Person, and (e) trade accounts payable of such Person. "Subsidiary" means, in respect of any Person, a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries, or by such Person and one or more other Subsidiaries. For purposes of this definition, "voting stock" means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended. "Underwriting Agreement" means a underwriting agreement, purchase agreement or placement agreement executed and delivered by the Issuer, the Depositor, MRM and the underwriters named therein. ARTICLE II TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act: Application (a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of this Guarantee Agreement and shall, to the extent applicable, be governed by such provisions. If any provision of this Guarantee Agreement 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 this Guarantee Agreement as so modified or to be excluded, as the case may be. (b) If any provision of this Guarantee Agreement limits, qualifies or conflicts with any duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act by Section 318(c) thereof, such required provision shall control. SECTION 2.2 List of Holders (a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (i) 15 days after each Regular Record Date (as defined in the Indenture), a list in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of the applicable date, and (ii) at such other times as the Guarantee Trustee may 6 request in writing, within 30 days after the receipt by the Guarantor of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Guarantor and is not identical to a previously supplied list of Holders or has not otherwise been received by the Guarantee Trustee in its capacity as such or in its capacity as Security Registrar (as defined in the Indenture). The Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Guarantee Trustee shall comply with its obligations under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act. SECTION 2.3 Reports by the Guarantee Trustee If required by Section 313(a) of the Trust Indenture Act, the Guarantee Trustee shall, within 60 days after each September 15 following the date of this Guarantee Agreement deliver to the Holders a brief report dated as of such September 15, which complies with the provisions of Section 313(a). The Guarantee Trustee shall also comply with the other requirements of Section 313 of the Trust Indenture Act. SECTION 2.4 Periodic Reports to the Guarantee Trustee The Guarantor and MRM shall provide to the Guarantee Trustee, the Securities and Exchange Commission and the Holders, such documents, reports and information, if any, as required by Section 314 of the Trust Indenture Act and the compliance certificate required by Section 314 of the Trust Indenture Act, in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act, such compliance certificate to be provided within 120 days of the end of each fiscal year of the Guarantor or MRM, as the case may be. SECTION 2.5 Evidence of Compliance with Conditions Precedent The Guarantor and MRM shall provide to the Guarantee Trustee such evidence of compliance with such conditions precedent, if any, provided for in this Guarantee Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officer's Certificate. SECTION 2.6 Events of Default; Waiver The Holders of a Majority in liquidation preference of the Preferred Securities may, by vote, on behalf of all Holders, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, 7 but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon. SECTION 2.7 Event of Default; Notice (a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders, notices of all such Events of Default, unless such defaults have been cured or waived before the giving of such notice, provided, that except in the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as a the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders. (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer of the Guarantee Trustee charged with the administration of the Trust Agreement shall have obtained written notice, of such Event of Default from the Guarantor, MRM or a Holder. SECTION 2.8 Conflicting Interests The Trust Agreement shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of the Guarantee Trustee (a) The rights, immunities, duties and responsibilities of the Guarantee Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, 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. Whether or not therein expressly so provided, every provision of this Guarantee Agreement relating to the conduct or affecting the liability of or affording protection to the Guarantee Trustee shall be subject to the provisions of this Section. 8 (b) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except a Holder exercising his or her rights pursuant to Section 5.4(d) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (c) Without limiting the effect of the first sentence of Section 3.1(a), no provision of this Guarantee Agreement shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its negligent failure to act or its own bad faith or willful misconduct, except that: (i) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; and (ii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in liquidation preference of the Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement. (d) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall be entitled to enforce this Guarantee for the benefit of the Holders. SECTION 3.2 Certain Rights of the Guarantee Trustee (a) Subject to the provisions of Section 3.1: (i) The Guarantee Trustee may rely upon, 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 paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (ii) Any direction or act of the Guarantor or MRM contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officer's Certificate of the Guarantor or MRM, as the case may be, unless otherwise prescribed herein. 9 (iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate which, upon receipt of such request, shall be promptly delivered by the Guarantor. (iv) The Guarantee Trustee may consult with competent legal counsel, and the written advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Guarantor or MRM or any of their Affiliates and may include any of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee Agreement from any court of competent jurisdiction. (v) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder, unless such Holder shall have provided to the Guarantee Trustee reasonable security and indemnity against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee. (vi) The Guarantee 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 paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. (vii) The Guarantee 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 Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder. (viii) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the Holders, and the signature of the Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Guarantee Agreement, both of which shall be conclusively evidenced by the Guarantee Trustee's or its agent's taking such action. 10 (ix) Whenever in the administration of this Guarantee Agreement the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders of a Majority in liquidation preference of the Preferred Securities, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (C) shall be protected in acting in accordance with such instructions. (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to act in accordance with such power and authority. SECTION 3.3 Compensation The Guarantor and MRM jointly and severally agree to pay the Guarantee Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and to reimburse the Guarantee Trustee upon request for all reasonable expenses, disbursements and advances (including the reasonable fees and expenses of its attorneys and agents) incurred or made by the Guarantee Trustee in accordance with any provision of this Guarantee Agreement. The provisions of this Section 3.3 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee. SECTION 3.4 Indemnity The Guarantor and MRM, jointly and severally, agree to indemnify the Guarantee Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Guarantee Trustee, arising out of or in connection with the acceptance or administration of this Guarantee Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Guarantee Trustee will not claim or exact any lien or charge on any Guarantee Payments as a result of any amount due to it under this Guarantee Agreement. 11 The provisions of this Section 3.4 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee. ARTICLE IV GUARANTEE TRUSTEE SECTION 4.1 Guarantee Trustee; Eligibility (a) There shall at all times be a Guarantee Trustee which shall: (i) not be an Affiliate of the Guarantor or MRM; and (ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital of at least 50 million U.S. dollars ($50,000,000), and shall be a corporation meeting the requirements of Section 310(c) of the Trust Indenture Act. If such corporation publishes reports of condition at least annually pursuant to law or to the requirements of the supervising or examining authority then, for the purposes of this Section 4.1(a)(ii), 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. (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2(c). (c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act, subject to the penultimate paragraph thereof. SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees (a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed with or without cause at any time by the Guarantor. (b) The Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor. 12 (c) The Guarantee Trustee appointed to office shall hold office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee. (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 30 days after delivery to the Guarantor of an instrument of resignation, the resigning Guarantee Trustee may petition any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee. ARTICLE V MUTUAL GROUP LTD. GUARANTEE SECTION 5.1 Mutual Group Ltd. Guarantee The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer), as and when due, regardless of any defense, right of set-off or counterclaim that the Issuer may have or assert, other then the defense of payment. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer, through the Note Issuer, to pay such amounts to the Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee in the event it makes any direct payment hereunder. SECTION 5.2 Waiver of Notice and Demand The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 5.3 Obligations Not Affected The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: 13 (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the Preferred Securities to be performed or observed by the Issuer; (b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Preferred Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Notes or so provided by the Indenture); (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Preferred Securities, or any action on the part of the Issuer granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of indebtedness of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any invalidity of, or defect or deficiency in, the Preferred Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing. SECTION 5.4 Rights of Holders The Guarantor expressly acknowledges that: (a) this Guarantee Agreement will be deposited with the Guarantee Trustee to be held for the benefit of the Holders; (b) the Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders; (c) the Holders of a Majority in liquidation preference of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the 14 Guarantee Trustee in respect of this Guarantee Agreement or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; provided, however, that, subject to Section 3.1, the Guarantee Trustee shall have the right to decline to follow any such direction if the Guarantee Trustee being advised by counsel determines that the action so directed may not lawfully be taken, or if the Guarantee Trustee in good faith shall, by a Responsible Officer or Officers of the Guarantee Trustee, determine that the proceedings so directed would be illegal or involve it in personal liability or be unduly prejudicial to the rights of the Holders not party to such direction, and provided, further, that nothing in this Guarantee Agreement shall impair the right of the Guarantee Trustee to take any action deemed proper by the Guarantee Trustee and which is not inconsistent with such direction; and (d) any Holder may, to the extent permitted by law, institute a legal proceeding directly against the Guarantor to enforce its rights under this Guarantee Agreement, without first instituting a legal proceeding against the Guarantee Trustee, the Issuer, the Note Issuer or any other Person. The Guarantor waives any right or remedy to require that any such action on this Guarantee Agreement be brought first against the Issuer or any other Person or entity before so proceeding directly against the Guarantor. SECTION 5.5 Guarantee of Payment This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication of amounts theretofore paid by the Issuer) or upon distribution of Notes to Holders as provided in the Trust Agreement. SECTION 5.6 Subrogation The Guarantor shall be subrogated to all rights, if any, of the Holders against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this Guarantee Agreement; provided, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. SECTION 5.7 Independent Obligations The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Preferred Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of 15 this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof. ARTICLE VI LIMITATION OF TRANSACTIONS; RANKING SECTION 6.1 Limitation of Transactions The Guarantor covenants and agrees that it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the capital stock of the Guarantor or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Guarantor that rank pari passu in all respects with or junior in interest to the Notes (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Guarantor (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the capital stock of the Guarantor (or any capital stock of a Subsidiary of the Guarantor), for any class or series of the capital stock of the Guarantor or of any class or series of the indebtedness of the Guarantor for any class or series of the capital stock of the Guarantor, (C) the purchase of fractional interests in shares of the capital stock of the Guarantor pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock), if at such time the Guarantor shall have given notice of its election to begin an Extension Period with respect to the Notes as provided in the Indenture and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. SECTION 6.2 Ranking This Guarantee Agreement will constitute an unsecured obligation of the Guarantor and will rank subordinate and junior in right of payment to all Senior Indebtedness of the Guarantor. The obligations of the Guarantor under this Guarantee Agreement do not constitute Company Senior Debt (as defined in the Indenture). 16 SECTION 6.3 Pari Passu Guarantees This Guarantee Agreement shall rank pari passu with any similar guarantee agreements issued by the Guarantor on behalf of holders of preferred securities of any other MRM Capital Trust (as defined in the Indenture) or any trust, partnership or other entity affiliated with the Guarantor which is a financing vehicle of the Guarantor or MRM or any Affiliate of the Guarantor or MRM in connection with the issuance by such entity of preferred securities or other securities which are similar to preferred securities that are guaranteed by the Guarantor pursuant to an instrument that ranks pari passu with or junior in right of payment to this Guarantee Agreement. ARTICLE VII MRM GUARANTEE SECTION 7.1 MRM Guarantee MRM hereby agrees to unconditionally and irrevocably guarantee to each Holder the due and punctual payment of the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer or the Guarantor) when and as the same shall become due and payable in accordance with the terms of this Guarantee Agreement, regardless of any defense, right of set- off or counterclaim that the Issuer may have or assert, other than the defense of payment. In case of the failure of the Guarantor punctually to make any such Guarantee Payments, MRM hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable and as if such payment were made by the Guarantor. MRM's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by MRM to the Holders or by causing the Issuer, through the Note Issuer, or the Guarantor to pay such amounts to the Holders. MRM shall give prompt written notice to the Guarantee Trustee in the event it makes any direct payment hereunder. The Guarantee Trustee is entitled to enforce the guarantee by MRM on behalf of the Holders. SECTION 7.2 Waiver of Notice and Demand MRM hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Issuer, the Guarantor or any other Person before proceeding against MRM, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. 17 SECTION 7.3 Obligations Not Affected The obligations, covenants, agreements and duties of MRM under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer or the Guarantor of any express or implied agreement, covenant, term or condition relating to the Preferred Securities to be performed or observed by the Issuer or the Guarantor; (b) the extension of time for the payment by the Issuer or the Guarantor of all or any portion of the Distributions, Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Preferred Securities (other than an extension of time for payment of Distributions, Redemption Price, Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Notes or so provided by the Indenture); (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Preferred Securities or the Guarantee Agreement, or any action on the part of the Issuer or the Guarantor granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of indebtedness of, or other similar proceedings affecting, the Issuer or the Guarantor or any of the assets of the Issuer or the Guarantor; (e) any invalidity of, or defect or deficiency in, the Preferred Securities or the Guarantor's obligations under this Guarantee Agreement; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 7.3 that the obligations of MRM hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Holders to give notice to, or obtain the consent of, MRM with respect to the happening of any of the foregoing. 18 SECTION 7.4 Rights of Holders MRM expressly acknowledges that: (a) this Guarantee Agreement will be deposited with the Guarantee Trustee to be held for the benefit of the Holders; (b) the Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders; (c) the Holders of a Majority in liquidation preference of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee Agreement or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; provided, however, that, subject to Section 3.1, the Guarantee Trustee shall have the right to decline to follow any such direction if the Guarantee Trustee being advised by counsel determines that the action so directed may not lawfully be taken, or if the Guarantee Trustee in good faith shall, by a Responsible Officer or Officers of the Guarantee Trustee, determine that the proceedings so directed would be illegal or involve it in personal liability or be unduly prejudicial to the rights of the Holders not party to such direction, and provided, further, that nothing in this Guarantee Agreement shall impair the right of the Guarantee Trustee to take any action deemed proper by the Guarantee Trustee and which is not inconsistent with such direction; and (d) any Holder may, to the extent permitted by law, institute a legal proceeding directly against MRM to enforce its rights under this Guarantee Agreement, without first instituting a legal proceeding against the Guarantee Trustee, the Issuer, the Note Issuer, the Guarantor or any other Person. MRM waives any right or remedy to require that any such action on this Guarantee Agreement be brought first against the Issuer, the Guarantor or any other Person or entity before so proceeding directly against MRM. SECTION 7.5 Guarantee of Payment This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication of amounts theretofore paid by the Issuer or the Guarantor) or upon distribution of Notes to Holders as provided in the Trust Agreement. SECTION 7.6 Subrogation MRM shall be subrogated to all rights, if any, of the Holders against the Issuer in respect of any amounts paid to such Holders by MRM under this Guarantee Agreement; provided, that MRM shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to MRM in violation of the preceding sentence, MRM agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. 19 SECTION 7.7 Independent Obligations MRM acknowledges that its obligations hereunder are independent of the obligations of the Issuer and the Guarantor with respect to the Preferred Securities and this Guarantee Agreement, and that MRM shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 7.3 hereof. SECTION 7.8 Net Payments. All payments required to be made hereunder by MRM shall be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which MRM is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If any withholding or deduction at source is required, MRM shall, subject to the limitations and exceptions set forth below, pay to the Holder of any Preferred Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in this Guarantee Agreement to be then due and payable (the "Additional Amounts"); provided, that MRM shall not be required to make payment of such Additional Amounts for or on account of: (1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder or the Owner of such Preferred Security: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or therein or otherwise had some connection with the relevant taxing jurisdiction or any political subdivision thereof or therein other than by reason of the mere ownership of, or receipt of payment under, such Preferred Security or this Guarantee Agreement; (B) presented such Preferred Security for payment in the relevant taxing jurisdiction or any political subdivision thereof or therein, unless such Preferred Security could not have been presented for payment elsewhere; 20 or (C) presented such Preferred Security more than thirty (30) days after the date on which the payment in respect of such Preferred Security first became due and payable, except to the extent that such Holder would have been entitled to such Additional Amounts if it had presented such Preferred Security for payment on any day within such period of thirty (30) days; (2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; (3) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by such Holder or such Owner to comply, within 90 days, with any reasonable request by MRM addressed to such Holder or such Owner (A) to provide information concerning the nationality, residence or identity of such Holder or such Owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; nor shall Additional Amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Preferred Security to any Holder where the Owner of such Preferred Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary with respect to such fiduciary or partner of such partnership who would not have been entitled to such Additional Amounts had it been the Holder of the Preferred Security. All references in this Guarantee Agreement to Guarantee Payments shall include any Additional Amounts payable by MRM in respect of such Guarantee Payments. In administering the provisions of this Section, the Guarantee Trustee shall be entitled to rely on, and MRM agrees to provide to it, the certifications provided to the Note Trustee under Section 15.3 of the Indenture. The Guarantee Trustee shall be entitled to the same indemnity available to the Note Trustee under the last sentence of the last paragraph of said Section 15.3. 21 ARTICLE VII RANKING OF MRM GUARANTEE SECTION 8.1 Ranking This Guarantee Agreement will constitute an unsecured obligation of MRM and will rank subordinate and junior in right of payment to all Senior Indebtedness of MRM. The obligations of MRM under this Guarantee Agreement do not constitute Guarantor Senior Debt (as defined in the Indenture). SECTION 8.2 Pari Passu Guarantees This Guarantee Agreement shall rank pari passu with any similar guarantee agreements issued by MRM on behalf of holders of preferred securities of any Trust (as defined in the Indenture) or any trust, partnership or other entity affiliated with MRM which is a financing vehicle of MRM or any Affiliate of MRM in connection with the issuance by such entity of preferred securities or other securities which are similar to preferred securities that are guaranteed by MRM pursuant to an instrument that ranks pari passu with or junior in right of payment to this Guarantee Agreement. ARTICLE IX TERMINATION SECTION 9.1 Termination This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full payment of the Redemption Price of all Preferred Securities, (ii) the distribution of the Notes to all Holders in exchange for the Preferred Securities or (iii) full payment of the amounts payable in accordance with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder must restore payment of any sums paid with respect to the Preferred Securities or under this Guarantee Agreement. The obligations of the Guarantor and MRM under Sections 3.3 and 3.4 shall survive any such termination. 22 ARTICLE X MISCELLANEOUS SECTION 10.1 Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and of MRM and shall inure to the benefit of the Holders of the Preferred Securities then outstanding. Except in connection with a consolidation, amalgamation or merger or conveyance, transfer or lease involving the Guarantor or MRM that is permitted under Article VIII of the Indenture and pursuant to which the assignee agrees in writing to perform the Guarantor's or MRM's obligations, as the case may be, hereunder, neither the Guarantor nor MRM shall assign its obligations hereunder. SECTION 10.2 Amendments Except with respect to any changes that do not adversely affect the rights of Holders in any material respect (in which case no consent of Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of at least a Majority in liquidation preference of the Preferred Securities. The provisions of Article VI of the Trust Agreement concerning meetings of Holders apply to the giving of such approval. SECTION 10.3 Notices Any notice, request or other communication required or permitted to be given hereunder shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows: (a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing address or facsimile number set forth below (or such other address or facsimile number as the Guarantee Trustee may give notice of to the Guarantor, MRM and the Holders): The Chase Manhattan Bank 450 West 33rd Street New York, New York 10001 Attention: Capital Markets Fiduciary Services Facsimile No.: (212) 946-___________________ 23 (b) If given to the Guarantor, at the Guarantor's mailing address or facsimile number set forth below (or such other address or facsimile number as the Guarantor may give notice of to the Guarantee Trustee and the Holders): Mutual Group, Ltd. One Logan Square Suite 1500 Philadelphia, Pennsylvania 19103 Attn: General Counsel and Secretary Facsimile No.: (215) 963-1610 (c) If given to MRM, at MRM's mailing address or facsimile number set forth below (or such other address or facsimile number as MRM may give notice of to the Guarantee Trustee and the Holders): Mutual Risk Management, Ltd. 44 Church Street Hamilton HMI2 Bermuda Attn: General Counsel and Secretary Facsimile No.: (441) 295-1867 (d) If given to the Issuer, at the Issuer's (and the Guarantee Trustee's) address or facsimile number set forth below or such other address or facsimile number as the Issuer or the Guarantee Trustee may give notice to the Guarantee Trustee (if given by the Issuer) and the Holders: MRM Capital Trust [ ] Mutual Group, Ltd. One Logan Square Suite 1500 Philadelphia, Pennsylvania 19103 Attn: General Counsel and Secretary Facsimile No.: (215) 963-1610 with a copy to: The Chase Manhattan Bank 450 West 33rd Street New York, New York 10001 Attention: Capital Markets Fiduciary Services Facsimile No.: (212) 946-_____________ (e) If given to any Holder, at the address set forth on the books and records of the Issuer. 24 All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 10.4 Benefit This Guarantee Agreement is solely for the benefit of the Holders and is not separately transferable from the Preferred Securities. SECTION 10.5 Governing Law THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. SECTION 10.6 Submission to Jurisdiction Each of the Guarantor and MRM agrees that any judicial proceedings instituted in relation to any matter arising under this Guarantee Agreement may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Guarantee Agreement, each of the Guarantor and MRM hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. Each of the Guarantor and MRM also irrevocably and unconditionally waives for the benefit of the Guarantee Trustee and the Holders any immunity from jurisdiction and any immunity from legal process (whether through service or notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of this Guarantee Agreement. Each of the Guarantor and MRM hereby irrevocably designates and appoints for the benefit of the Guarantee Trustee and the Holders for the term of this Guarantee Agreement CT Corporation, 111 8th Avenue, New York, New York 10011, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to Richard E. O'Brien, Senior Vice President and General Counsel, Mutual Risk Management Ltd., 44 Church Street, Hamilton, HM 12, Bermuda) brought against it with respect to any such proceeding in any such court in The City of New York, such service being hereby acknowledged by the Guarantor and MRM to be effective and binding service on it in every respect whether or not the Guarantor or MRM shall then be doing or shall have at any time done business in New York. Such appointment shall be irrevocable so long as any of the Preferred Securities or the obligations of 25 MRM hereunder remain outstanding, or until the appointment of a successor by the Guarantor and MRM and such successor's acceptance of such appointment. Upon such acceptance, the Guarantor and MRM shall notify the Guarantee Trustee of the name and address of such successor. The Guarantor and MRM further agree for the benefit of the Guarantee Trustee and the Holders to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation in full force and effect so long as any of the Preferred Securities or the obligations of the Guarantor or MRM hereunder shall be outstanding. The Guarantee Trustee shall not be obligated and shall have no responsibility with respect to any failure by the Guarantor or MRM to take any such action. Nothing herein shall affect the right to serve process in any other manner permitted by any law or limit the right of the Guarantee Trustee or any Holder to institute proceedings against the Guarantor or MRM in the courts of any other jurisdiction or jurisdictions. SECTION 10.7 Counterparts 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. 26 THIS PREFERRED SECURITIES GUARANTEE AGREEMENT is executed as of the day and year first above written. MUTUAL GROUP, LTD. By:_____________________________ Name:___________________________ Title:__________________________ MUTUAL RISK MANAGEMENT LTD. By:_____________________________ Name:___________________________ Title:__________________________ THE CHASE MANHATTAN BANK, as Guarantee Trustee By:_____________________________ Name:___________________________ Title:__________________________ 27 EX-5.1 13 OPINIONS OF RICHARDS, LAYTON & FINGER [Letterhead of Richards, Layton & Finger, P.A.] Exhibit 5.1 May 22, 2000 MRM Capital Trust I One Logan Square Suite 1500 Philadelphia, PA 19103 Re: MRM Capital Trust I ------------------- Ladies and Gentlemen: We have acted as special Delaware counsel for Mutual Group Ltd., a Delaware corporation (the "Company"), and MRM Capital Trust I, a Delaware business trust (the "Trust"), in connection with the matters set forth herein. At your request, this opinion is being furnished to you. For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following: (a) The Certificate of Trust of the Trust, dated February 3, 2000 (the "Certificate"), as filed in the office of the Secretary of State of the State of Delaware (the "Secretary of State") on February 3, 2000; (b) The Trust Agreement of the Trust, dated as of February 3, 2000, by and among the Company and the trustees of the Trust named therein; MRM Capital Trust I May 22, 2000 Page 2 (c) A form of Amended and Restated Trust Agreement of the Trust, (including Exhibits A, B and C thereto) (the "Trust Agreement"), among the Company, the trustees of the Trust named therein, and the holders, from time to time, of undivided beneficial interests in the assets of the Trust; (d) Amendment No. 1 to the Registration Statement on Form S-3 (the "Registration Statement"), including a preliminary prospectus (the "Prospectus"), relating to the Preferred Securities of the Trust, representing undivided beneficial interests in the assets of the Trust (each, a "Preferred Security" and collectively, the "Preferred Securities"), as proposed to be filed by the Company, the Trust and others with the Securities and Exchange Commission on or about April 27, 2000; (e) The Removal and Appointment of Trustee of the Trust, dated as of March 27, 2000, by the Company and agreed to and acknowledged by Chase Manhattan Trust Company, National Association, a National Association, as removed trustee of the Trust, and The Chase Manhattan Bank, a New York banking corporation, as an additional trustee of the Trust; and (f) A Certificate of Good Standing for the Trust, dated April 27, 2000, obtained from the Secretary of State. Initially capitalized terms used herein and not otherwise defined are used as defined in the Trust Agreement. For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (f) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (f) above) that is referred to in or incorporated by reference into the documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. MRM Capital Trust I April 27, 2000 Page 3 For purposes of this opinion, we have assumed (i) that the Trust Agreement and the Certificate are in full force and effect and have not been amended, (ii) except to the extent provided in paragraph 1 below, that each of the parties to the documents examined by us has been duly created, organized or formed, as the case may be, and is validly existing in good standing under the laws of the jurisdiction governing its creation, organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) that each of the parties to the documents examined by us has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) that each of the parties to the documents examined by us has duly authorized, executed and delivered such documents, (vi) the receipt by each Person to whom a Preferred Security is to be issued by the Trust (collectively, the "Preferred Security Holders") of a Preferred Securities Certificate for such Preferred Security and the payment for the Preferred Security acquired by it, in accordance with the Trust Agreement and the Registration Statement, and (vii) that the Preferred Securities are issued and sold to the Preferred Security Holders in accordance with the Trust Agreement and the Registration Statement. We have not participated in the preparation of the Registration Statement and assume no responsibility for its contents. This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder that are currently in effect. Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: 1. The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act. 2. The Preferred Securities will represent valid and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable undivided beneficial interests in the assets of the Trust. MRM Capital Trust I April 27, 2000 Page 4 3. The Preferred Security Holders, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. We note that the Preferred Security Holders may be obligated to make payments as set forth in the Trust Agreement. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In addition, we hereby consent to the use of our name under the heading "Validity of the Securities" in the Prospectus. In giving the foregoing consents, we do not thereby admit that we come within the category of Persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Richards, Layton & Finger, P.A. BJK/MKS EXHIBIT 5.1 [Letterhead of Richards, Layton & Finger, P.A.] May 22, 2000 MRM Capital Trust II One Logan Square Suite 1500 Philadelphia, PA 19103 Re: MRM Capital Trust II -------------------- Ladies and Gentlemen: We have acted as special Delaware counsel for Mutual Group Ltd., a Delaware corporation (the "Company"), and MRM Capital Trust II, a Delaware business trust (the "Trust"), in connection with the matters set forth herein. At your request, this opinion is being furnished to you. For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following: (a) The Certificate of Trust of the Trust, dated February 3, 2000 (the "Certificate"), as filed in the office of the Secretary of State of the State of Delaware (the "Secretary of State") on February 3, 2000; (b) The Trust Agreement of the Trust, dated as of February 3, 2000, by and among the Company and the trustees of the Trust named therein; MRM Capital Trust II May 22, 2000 Page 2 (c) A form of Amended and Restated Trust Agreement of the Trust, (including Exhibits A, B and C thereto) (the "Trust Agreement"), among the Company, the trustees of the Trust named therein, and the holders, from time to time, of undivided beneficial interests in the assets of the Trust; (d) Amendment No. 1 to the Registration Statement on Form S-3 (the "Registration Statement"), including a preliminary prospectus (the "Prospectus"), relating to the Preferred Securities of the Trust, representing undivided beneficial interests in the assets of the Trust (each, a "Preferred Security" and collectively, the "Preferred Securities"), as proposed to be filed by the Company, the Trust and others with the Securities and Exchange Commission on or about April 27, 2000; (e) The Removal and Appointment of Trustee of the Trust, dated as of March 27, 2000, by the Company and agreed to and acknowledged by Chase Manhattan Trust Company, National Association, a National Association, as removed trustee of the Trust, and The Chase Manhattan Bank, a New York banking corporation, as an additional trustee of the Trust; and (f) A Certificate of Good Standing for the Trust, dated April 27, 2000, obtained from the Secretary of State. Initially capitalized terms used herein and not otherwise defined are used as defined in the Trust Agreement. For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (f) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (f) above) that is referred to in or incorporated by reference into the documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. MRM Capital Trust II April 27, 2000 Page 3 For purposes of this opinion, we have assumed (i) that the Trust Agreement and the Certificate are in full force and effect and have not been amended, (ii) except to the extent provided in paragraph 1 below, that each of the parties to the documents examined by us has been duly created, organized or formed, as the case may be, and is validly existing in good standing under the laws of the jurisdiction governing its creation, organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) that each of the parties to the documents examined by us has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) that each of the parties to the documents examined by us has duly authorized, executed and delivered such documents, (vi) the receipt by each Person to whom a Preferred Security is to be issued by the Trust (collectively, the "Preferred Security Holders") of a Preferred Securities Certificate for such Preferred Security and the payment for the Preferred Security acquired by it, in accordance with the Trust Agreement and the Registration Statement, and (vii) that the Preferred Securities are issued and sold to the Preferred Security Holders in accordance with the Trust Agreement and the Registration Statement. We have not participated in the preparation of the Registration Statement and assume no responsibility for its contents. This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder that are currently in effect. Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: 1. The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act. 2. The Preferred Securities will represent valid and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable undivided beneficial interests in the assets of the Trust. MRM Capital Trust II April 27, 2000 Page 4 3. The Preferred Security Holders, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. We note that the Preferred Security Holders may be obligated to make payments as set forth in the Trust Agreement. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In addition, we hereby consent to the use of our name under the heading "Validity of the Securities" in the Prospectus. In giving the foregoing consents, we do not thereby admit that we come within the category of Persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Richards, Layton & Finger, P.A. BJK/MKS Exhibit 5.1 [Letterhead of Richards, Layton & Finger, P.A.] May 22, 2000 MRM Capital Trust III One Logan Square Suite 1500 Philadelphia, PA 19103 Re: MRM Capital Trust III --------------------- Ladies and Gentlemen: We have acted as special Delaware counsel for Mutual Group Ltd., a Delaware corporation (the "Company"), and MRM Capital Trust III, a Delaware business trust (the "Trust"), in connection with the matters set forth herein. At your request, this opinion is being furnished to you. For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following: (a) The Certificate of Trust of the Trust, dated February 3, 2000 (the "Certificate"), as filed in the office of the Secretary of State of the State of Delaware (the "Secretary of State") on February 3, 2000; (b) The Trust Agreement of the Trust, dated as of February 3, 2000, by and among the Company and the trustees of the Trust named therein; MRM Capital Trust III May 22, 2000 Page 2 (c) A form of Amended and Restated Trust Agreement of the Trust, (including Exhibits A, B and C thereto) (the "Trust Agreement"), among the Company, the trustees of the Trust named therein, and the holders, from time to time, of undivided beneficial interests in the assets of the Trust; (d) Amendment No. 1 to the Registration Statement on Form S-3 (the "Registration Statement"), including a preliminary prospectus (the "Prospectus"), relating to the Preferred Securities of the Trust, representing undivided beneficial interests in the assets of the Trust (each, a "Preferred Security" and collectively, the "Preferred Securities"), as proposed to be filed by the Company, the Trust and others with the Securities and Exchange Commission on or about April 27, 2000; (e) The Removal and Appointment of Trustee of the Trust, dated as of March 27, 2000, by the Company and agreed to and acknowledged by Chase Manhattan Trust Company, National Association, a National Association, as removed trustee of the Trust, and The Chase Manhattan Bank, a New York banking corporation, as an additional trustee of the Trust; and (f) A Certificate of Good Standing for the Trust, dated April 27, 2000, obtained from the Secretary of State. Initially capitalized terms used herein and not otherwise defined are used as defined in the Trust Agreement. For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (f) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (f) above) that is referred to in or incorporated by reference into the documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. MRM Capital Trust III April 27, 2000 Page 3 For purposes of this opinion, we have assumed (i) that the Trust Agreement and the Certificate are in full force and effect and have not been amended, (ii) except to the extent provided in paragraph 1 below, that each of the parties to the documents examined by us has been duly created, organized or formed, as the case may be, and is validly existing in good standing under the laws of the jurisdiction governing its creation, organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) that each of the parties to the documents examined by us has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) that each of the parties to the documents examined by us has duly authorized, executed and delivered such documents, (vi) the receipt by each Person to whom a Preferred Security is to be issued by the Trust (collectively, the "Preferred Security Holders") of a Preferred Securities Certificate for such Preferred Security and the payment for the Preferred Security acquired by it, in accordance with the Trust Agreement and the Registration Statement, and (vii) that the Preferred Securities are issued and sold to the Preferred Security Holders in accordance with the Trust Agreement and the Registration Statement. We have not participated in the preparation of the Registration Statement and assume no responsibility for its contents. This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder that are currently in effect. Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: 1. The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act. 2. The Preferred Securities will represent valid and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable undivided beneficial interests in the assets of the Trust. MRM Capital Trust III April 27, 2000 Page 4 3. The Preferred Security Holders, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. We note that the Preferred Security Holders may be obligated to make payments as set forth in the Trust Agreement. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In addition, we hereby consent to the use of our name under the heading "Validity of the Securities" in the Prospectus. In giving the foregoing consents, we do not thereby admit that we come within the category of Persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Richards, Layton & Finger, P.A. BJK/MKS EX-5.2 14 OPINION OF MAYER BROWN & PLATT Exhibit 5.2 [MAYER, BROWN & PLATT LETTERHEAD] May 22, 2000 Mutual Group Ltd. One Logan Square, Suite 1500 Philadelphia, Pennsylvania 19103 Re: Mutual Risk Management Ltd. Mutual Group Ltd. Registration Statement on Form S-3 Dear Ladies/Gentlemen: We have represented Mutual Group Ltd., a Delaware corporation ("Mutual Group"), in connection with the preparation and filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), of a Registration Statement on Form S-3 (File No. 333-96425) (the "Registration Statement") relating to senior notes (the "Senior Notes") and junior subordinated notes (the "Junior Subordinated Notes") of Mutual Group. We have also represented MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III, each a Delaware business trust (each a "Trust," and collectively, the "Trusts"), in connection with the preparation and filing with the Commission under the Securities Act of the Registration Statement relating to preferred securities (the "Preferred Securities") of the Trusts, which are guaranteed (the "Guarantees") by Mutual Group. The Senior Notes are to be issued under a senior indenture (the "Senior Indenture") between Mutual Group, Mutual Risk Management Ltd., a Bermuda holding company ("MRM"), as guarantor, and The Chase Manhattan Bank, as trustee, and the Junior Subordinated Notes are to be issued under a subordinated indenture (the "Subordinated Indenture") between Mutual Group, MRM, as guarantor, and The Chase Manhattan Bank, as trustee, in each case to be entered into prior to the issuance of the Senior Notes and the Junior Subordinated Notes, respectively. Certain terms of the Senior Notes and the Junior Subordinated Notes will be established by supplemental indentures or resolutions of the board of directors of Mutual Group. In rendering the opinions expressed herein, we have examined and relied upon such documents, corporate records, certificates of public officials and certificates as to factual matters executed by officers of Mutual Group as we have deemed necessary or appropriate. We have assumed the authenticity, accuracy and completeness of all documents, records and certificates submitted to us as originals, the conformity to the originals of all documents, records and certificates submitted to us as copies and the authenticity, accuracy and completeness of the originals of all documents, records and certificates submitted to us as copies. We have also assumed the legal capacity and genuineness of the signatures of persons signing all documents in connection with which the opinions expressed herein are rendered. Based upon and subject to the foregoing, we are of the opinion that: (i) The Senior Notes have been duly authorized for issuance by Mutual Group and, when duly executed and delivered and authenticated in accordance with the Senior Indenture and when payment therefor is received, will constitute valid and legally binding obligations of Mutual Group entitled to the benefits provided by the Senior Indenture, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforceability of creditors' rights generally and to court decisions with respect thereto and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (ii) The Junior Subordinated Notes have been duly authorized for issuance by Mutual Group and, when duly executed and delivered and authenticated in accordance with the Subordinated Indenture and when payment therefor is received, will constitute valid and legally binding obligations of Mutual Group entitled to the benefits provided by the Junior Subordinated Indenture, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforceability of creditors' rights generally and to court decisions with respect thereto and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (iii) The Guarantees have been duly authorized for issuance by Mutual Group and, when duly executed and delivered, and when the Preferred Securities are duly executed, delivered and payment therefor is received, will constitute valid and legally binding obligations of Mutual Group, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforceability of creditors' rights generally and to court decisions with respect thereto and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). We are admitted to practice law in the States of Illinois and New York and we express no opinions as to matters under or involving any laws other than the laws of the States of Illinois and New York, the federal laws of the United States of America and the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the captions "Validity of the Notes" and "Validity of the Securities" in the Registration Statement. Very truly yours, /s/ Mayer, Brown & Platt MAYER, BROWN & PLATT EX-5.3 15 OPINION OF CONYERS DILL & PEARMAN Exhibit 5.3 [LETTERHEAD OF CONYERS DILL & PEARMAN] May 22, 2000 Mutual Risk Management Ltd. 44 Church Street Hamilton Bermuda Dear Sirs Mutual Risk Management Ltd. We have acted as special legal counsel in Bermuda to Mutual Risk Management Ltd., a Bermuda company ("MRM"), in connection with the Registration Statement on Form S-3 of the Company (Registration No. 333-96425) and the Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3 (Registration No. 333-96425) (the "Registration Statement"), filed today with the Securities and Exchange Commission under the United States Securities Act of 1933, as amended (the "Act") relating to (i) senior notes of MRM (the "Senior Notes"), (ii) junior subordinated notes of MRM (the "Junior Subordinated Notes"), (iii) guarantees by MRM of senior notes issued by Mutual Group Ltd. ("Mutual Group"), a Delaware corporation (the "Senior Note Guarantees"), (iv) guarantees by MRM of junior subordinated notes issued by Mutual Group (the "Junior Note Guarantees"); (v) guarantees by MRM relating to preferred securities issued by each of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III, each a Delaware business trust formed by Mutual Group Ltd. (the "Preferred Guarantees") and (vi) guarantees by MRM of Mutual Group's guarantees relating to preferred securities issued by each of MRM Capital Trust I, MRM Capital Trust II and MRM Capital Trust III, each a Delaware business trust formed by Mutual Group (the "MRM Guarantees of Mutual Group's Preferred Guarantees"). The Senior Notes are to be issued under a senior indenture (the "Senior Indenture") between MRM and The Chase Manhattan Bank, as trustee, to be entered into prior to the issuance of the Senior Notes. The Junior Subordinated Notes are to be issued under a junior, subordinated indenture (the "Subordinated Indenture") between MRM and The Chase Manhattan Bank, as trustee, to be entered into prior to the issuance of the Junior Subordinated Notes. Each Senior Note Guarantee is to be issued under a senior indenture among Mutual Group, MRM and The Chase Manhattan Bank, as trustee, to be entered into prior to the issuance of a Senior Note Guarantee. Each Junior Note Guarantee is to be issued under a Subordinated Indenture among Mutual Group, MRM and The Chase Manhattan Bank, as trustee, to be entered into prior to the issuance of a Junior Note Guarantee. Each Preferred Guarantee is to be issued pursuant to a Preferred Guarantee Agreement among MRM and The Chase Manhattan Bank, as trustee, to be entered into prior to the issuance of a Preferred Guarantee. Each MRM Guarantee of Mutual Group's Preferred Guarantees is to be issued pursuant to a Preferred Guarantee Agreement among Mutual Group Ltd., MRM and The Chase Manhattan Bank, as trustee, to be entered into prior to the issuance of a MRM Guarantee of Mutual Group's Preferred Guarantee. For the purposes of giving this opinion, we have examined the following documents: (i) the Registration Statement (excluding the documents incorporated by reference therein and the exhibits and schedules thereto whether or not specifically referred to therein); and (ii) the form of the Senior Indenture, which includes the Senior Note Guarantee; (iii) the form of the Subordinated Indenture, which includes the Junior Note Guarantee; (iv) the form of the Mutual Group Preferred Guarantee Agreement, which includes the MRM Guarantee of Mutual Group's Preferred Guarantee; and (v) the form of the MRM Preferred Guarantee Agreement, which includes the MRM Preferred Guarantee. The documents listed in items (ii) through (v) above are herein sometimes collectively referred to as the "Documents" (which term does not include any other instrument or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto). We have also reviewed the memorandum of association and the bye-laws of MRM, each certified by the Secretary of MRM on the date hereof and a certified copy of resolutions adopted by the board of directors of MRM at its meeting held on March 16, 2000 (the "Minutes"), and such other -3- documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion set forth below. We have assumed (a) the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken, (b) that where a document has been examined by us in draft form, it will be or has been executed in the form of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn to our attention, (c) the capacity, power and authority of each of the parties to the Documents, other than MRM, to enter into and perform its respective obligations under the Documents, (d) the due execution of the Documents by each of the parties thereto, other than MRM, and the delivery thereof by each of the parties thereto, (e) the accuracy and completeness of all factual representations made in the Documents and other documents reviewed by us, (f) that the resolutions contained in the Minutes remain in full force and effect and have not been rescinded or amended, (g) that there is no provision of the law of any jurisdiction, other than Bermuda, which would have any implication in relation to the opinions expressed herein, (h) the validity and binding effect under the laws of the State of New York, in the United States of America (the "Foreign Laws") of the Documents which are expressed to be governed by such Foreign Laws in accordance with their respective terms, (i) the validity and binding effect under the Foreign Laws of the submission by MRM pursuant to the Documents to the non-exclusive jurisdiction of the courts of the State of New York in the said United States of America (the "Foreign Courts"). The obligations of MRM under the Documents (a) will be subject to the laws from time to time in effect relating to bankruptcy, insolvency, liquidation, possessory liens, rights of set off, reorganisation, amalgamation, moratorium or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors, (b) will be subject to statutory limitation of the time within which proceedings may be brought, (c) will be subject to general principles of equity and, as such, specific performance and injunctive relief, being equitable remedies, may not be available, (d) may not be given effect to by a Bermuda court, whether or not it was applying the Foreign Laws, if and to the extent they constitute the payment of an amount which is in the nature of a penalty and not in the nature of liquidated damages. Notwithstanding any contractual submission to the jurisdiction of specific courts, a Bermuda court has inherent discretion to stay or allow proceedings in the Bermuda courts. We express no opinion as to the enforceability of any provision of the Documents which provides for the payment of a specified rate of interest on the amount of a judgment after the date of judgment or which purports to fetter the statutory powers of MRM. We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than Bermuda. This opinion is to be governed by and construed in accordance with the laws of Bermuda and is limited to and is given on the basis of the current law and practice in Bermuda. -4- This opinion is issued solely for your benefit and is not to be relied upon by any other person, firm or entity or in respect of any other matter. On the basis of and subject to the foregoing, we are of the opinion that: 1. MRM is duly incorporated and existing under the laws of Bermuda. 2. The issuance of the Senior Notes pursuant to the Senior Indenture will have been duly authorised in accordance with the memorandum of association and bye-laws of MRM. 3. When issued and paid for as contemplated by the Registration Statement, the Senior Notes will be a valid and legally binding obligation of MRM. 4. The issuance of the Junior Subordinated Notes pursuant to the Subordinated Indenture will have been duly authorised in accordance with the memorandum of association and bye-laws of MRM. 5. When issued and paid for as contemplated by the Registration Statement, the Junior Subordinated Notes will be a valid and legally binding obligation of MRM. 6. The issuance of the Senior Note Guarantee pursuant to the Mutual Group Senior Indenture will have been duly authorised in accordance with the memorandum of association and bye-laws of the Company. 7. When issued and paid for as contemplated by the Registration Statement, the Senior Note Guarantee will be a valid and legally binding obligation of MRM. 8. The issuance of the Junior Note Guarantee pursuant to the Mutual Group Subordinated Indenture will have been duly authorised in accordance with the memorandum of association and bye-laws of MRM. 9. When issued and paid for as contemplated by the Registration Statement, the Junior Note Guarantee will be a valid and legally binding obligation of MRM. 10. Each MRM Preferred Guarantee pursuant to the MRM Preferred Securities Guarantee Agreement will have been duly authorised in accordance with the memorandum of association and bye-laws of MRM. 11. When issued and paid for as contemplated by the Registration Statement, each MRM Preferred Guarantee will be a valid and legally binding obligation of MRM. -5- 12. Each MRM Guarantee of Mutual Group's Preferred Guarantee pursuant to the Mutual Group Preferred Guarantee Agreement will have been duly authorised in accordance with the memorandum of association and bye-laws of MRM. 13. When issued and paid for as contemplated by the Registration Statement, each MRM Guarantee of Mutual Group's Preferred Guarantee will be a valid and legally binding obligation of MRM. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the captions "Validity of the Notes" and "Validity of the Securities" in the Registration Statement. David J. Doyle, an attorney with Conyers Dill & Pearman, is a director of MRM. Yours faithfully /s/ CONYERS DILL & PEARMAN CONYERS DILL & PEARMAN EX-23.1 16 CONSENT OF ERNST & YOUNG Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS TO THE BOARD OF DIRECTORS AND SHAREHOLDERS MUTUAL RISK MANAGEMENT LTD. We consent to the reference to our firm under the caption "Experts" and to the incorporation by reference of our report dated February 15, 2000 (except for note 21, as to which the date is February 29, 2000), in Amendment No. 1 to the Registration Statement (Form S-3 No. 333-96425) of Mutual Risk Management Ltd. dated May 22, 2000. /S/ ERNST & YOUNG Hamilton, Bermuda May 22, 2000 EX-25.1 17 FORM T-1 (SENIOR NOTES-MRM) Exhibit 25.1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- Mutual Risk Management Ltd. (Exact name of obligor as specified in its charter) ---------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address, including zip code, Philadelphia, PA 19103 of principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) ---------------- Senior Notes (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By___________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices.......................................... $102,421 Noninterest-bearing ......................................... $ 41,580 Interest-bearing ............................................ 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's....................................................... 108,233 Noninterest-bearing ........................................... $ 6,061 Interest-bearing .............................................. 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................................... 47,425 Demand notes issued to the U.S. Treasury....................... 100 Trading liabilities............................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................ 3,964 With a remaining maturity of more than one year through three years....................................................... 14 With a remaining maturity of more than three years........... 99 Bank's liability on acceptances executed and outstanding ...... 608 Subordinated notes and debentures.............................. 5,430 Other liabilities.............................................. 11,886 -------- Total liabilities.......................................... 313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.................. 0 Common stock................................................... 1,211 Surplus (exclude all surplus related to preferred stock)....... 11,066 Undivided profits and capital reserves......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities ................................................... (1,277) Accumulated net gains (losses) on cash flow hedges............. 0 Cumulative foreign currency translation adjustments............ 16 -------- Total equity capital....................................... 18,392 -------- Total liabilities and equity capital....................... $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. DIRECTORS HELENE L. KAPLAN HENRY B. SCHACHT 5 EX-25.2 18 FORM T-1 (SENIOR NOTES-MUTUAL GROUP) Exhibit 25.2 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee --------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ --------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) --------------- New York 13-4994650 (State of incorporation if not a (I.R.S. employer identification No.) national bank) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) --------------- Mutual Group Ltd. (Exact name of obligor as specified in its charter) --------------- Delaware 51-0239964 (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (Address, including zip code, of One Logan Square, Suite 1500 principal executive offices) Philadelphia, PA 19103 (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Mutual Risk Management Ltd. (Exact name of guarantor as specified in its charter) --------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address and telephone number of Philadelphia, PA 19103 guarantor's principal offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Senior Notes (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By___________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices.......................................... $102,421 Noninterest-bearing.......................................... $ 41,580 Interest-bearing............................................. 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's....................................................... 108,233 Noninterest-bearing............................................ $ 6,061 Interest-bearing............................................... 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................................... 47,425 Demand notes issued to the U.S. Treasury....................... 100 Trading liabilities............................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................ 3,964 With a remaining maturity of more than one year through three years....................................................... 14 With a remaining maturity of more than three years........... 99 Bank's liability on acceptances executed and outstanding....... 608 Subordinated notes and debentures.............................. 5,430 Other liabilities.............................................. 11,886 Total liabilities.......................................... $313,806 EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.................. $ 0 Common stock................................................... 1,211 Surplus (exclude all surplus related to preferred stock)....... 11,066 Undivided profits and capital reserves......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities.................................................... (1,277) Accumulated net gains (losses) on cash flow hedges............. 0 Cumulative foreign currency translation adjustments............ 16 Total equity capital....................................... 18,392 Total liabilities and equity capital....................... $332,198
I, Joseph L. Sclafani, E. V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.3 19 FORM T-1 (JUNIOR SUBORDINATED NOTES-MRM) Exhibit 25.3 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee ---------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- Mutual Risk Management Ltd. (Exact name of obligor as specified in its charter) Bermuda N/A (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification No.) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address, including zip code, Philadelphia, PA 19103 of principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) ---------------- Junior Subordinated Notes (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By __________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices.......................................... $102,421 Noninterest-bearing ......................................... $ 41,580 Interest-bearing ............................................ 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's....................................................... 108,233 Noninterest-bearing ........................................... $ 6,061 Interest-bearing .............................................. 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................................... 47,425 Demand notes issued to the U.S. Treasury....................... 100 Trading liabilities............................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................ 3,964 With a remaining maturity of more than one year through three years....................................................... 14 With a remaining maturity of more than three years........... 99 Bank's liability on acceptances executed and outstanding....... 608 Subordinated notes and debentures.............................. 5,430 Other liabilities.............................................. 11,886 -------- Total liabilities.......................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.................. $ 0 Common stock................................................... 1,211 Surplus (exclude all surplus related to preferred stock)....... 11,066 Undivided profits and capital reserves......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities ................................................... (1,277) Accumulated net gains (losses) on cash flow hedges............. 0 Cumulative foreign currency translation adjustments............ 16 -------- Total equity capital....................................... 18,392 -------- Total liabilities and equity capital....................... $332,198 ========
I, Joseph L. Sclafani, E. V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.4 20 FORM T-1 (JUNIOR SUBORDINATED NOTES-MUTUAL GROUP) Exhibit 25.4 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee --------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ --------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) --------------- New York 13-4994650 (State of incorporation if not a (I.R.S. employer identification No.) national bank) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) --------------- Mutual Group Ltd. (Exact name of obligor as specified in its charter) --------------- Delaware 51-0239964 (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (Address, including zip code, of One Logan Square, Suite 1500 principal executive offices) Philadelphia, PA 19103 (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Mutual Risk Management Ltd. (Exact name of guarantor as specified in its charter) --------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address and telephone number of Philadelphia, PA 19103 guarantor's principal offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Junior Subordinated Notes (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By __________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated compa- nies........................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices.......................................... $102,421 Noninterest-bearing ......................................... $ 41,580 Interest-bearing ............................................ 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's....................................................... 108,233 Noninterest-bearing ........................................... $ 6,061 Interest-bearing .............................................. 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................................... 47,425 Demand notes issued to the U.S. Treasury....................... 100 Trading liabilities............................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................ 3,964 With a remaining maturity of more than one year through three years....................................................... 14 With a remaining maturity of more than three years........... 99 Bank's liability on acceptances executed and outstanding....... 608 Subordinated notes and debentures.............................. 5,430 Other liabilities.............................................. 11,886 -------- Total liabilities.......................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.................. $ 0 Common stock................................................... 1,211 Surplus (exclude all surplus related to preferred stock)....... 11,066 Undivided profits and capital reserves......................... 7,376 Net unrealized holding gains (losses) on available-for-sale se- curities ..................................................... (1,277) Accumulated net gains (losses) on cash flow hedges............. 0 Cumulative foreign currency translation adjustments............ 16 -------- Total equity capital....................................... 18,392 -------- Total liabilities and equity capital....................... $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.5 21 FORM T-1 (PREFERRED SECURITIES-MRM CAP. TRST I) Exhibit 25.5 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee ---------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- MRM Capital Trust I (Exact name of obligor as specified in its charter) ---------------- Delaware (Applied for) (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification No.) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, and Philadelphia, PA 19103 telephone number, including area (215) 963-1600 code, (Name, address and telephone of principal executive offices) number of agent for service) ---------------- Preferred Securities (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By___________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices.......................................... $102,421 Noninterest-bearing.......................................... $ 41,580 Interest-bearing............................................. 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's....................................................... 108,233 Noninterest-bearing............................................ $ 6,061 Interest-bearing............................................. 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................................... 47,425 Demand notes issued to the U.S. Treasury....................... 100 Trading liabilities............................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................ 3,964 With a remaining maturity of more than one year through three years....................................................... 14 With a remaining maturity of more than three years........... 99 Bank's liability on acceptances executed and outstanding....... 608 Subordinated notes and debentures.............................. 5,430 Other liabilities.............................................. 11,886 -------- Total liabilities.......................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.................. $ 0 Common stock................................................... 1,211 Surplus (exclude all surplus related to preferred stock)....... 11,066 Undivided profits and capital reserves......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities.................................................... (1,277) Accumulated net gains (losses) on cash flow hedges............. 0 Cumulative foreign currency translation adjustments............ 16 Total equity capital....................................... 18,392 -------- Total liabilities and equity capital....................... $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.6 22 FORM T-1 (PREFERRED SECURITIES-MRM CAP. TRST II) Exhibit 25.6 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee ---------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- MRM Capital Trust II (Exact name of obligor as specified in its charter) ---------------- Delaware (Applied for) (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification No.) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, Philadelphia, PA 19103 and telephone number, (215) 963-1600 including area code, (Name, address and telephone of principal executive offices) number of agent for service) ---------------- Preferred Securities (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By___________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest- bearing balances and currency and coin............ $ 13,271 Interest-bearing balances........ 30,165 Securities: Held to maturity securities...... 724 Available for sale securities. 54,770 Federal funds sold and securities purchased under agreements to resell.......... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income.......... $132,814 Less: Allowance for loan and lease losses.... 2,254 Less: Allocated transfer risk reserve......... 0 -------- Loans and leases, net of unearned income, allowance, and reserve....... 130,560 Trading Assets..... 53,619 Premises and fixed assets (including capitalized leases)........... 3,359 Other real estate owned............. 29 Investments in unconsolidated subsidiaries and associated companies......... 186 Customers' liability to this bank on acceptances outstanding....... 608 Intangible assets.. 3,659 Other assets....... 14,554 -------- Total assets... $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices......... $102,421 Noninterest- bearing ........ $ 41,580 Interest-bearing ................ 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's........... 108,233 Noninterest-bearing .................. $ 6,061 Interest-bearing .. 102,172 Federal funds purchased and securities sold under agreements to repurchase..... 47,425 Demand notes issued to the U.S. Treasury.......... 100 Trading liabilities....... 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less...... 3,964 With a remaining maturity of more than one year through three years............. 14 With a remaining maturity of more than three years.. 99 Bank's liability on acceptances executed and outstanding....... 608 Subordinated notes and debentures.... 5,430 Other liabilities.. 11,886 Total liabilities... $313,806 EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus........... $ 0 Common stock....... 1,211 Surplus (exclude all surplus related to preferred stock).. 11,066 Undivided profits and capital reserves.......... 7,376 Net unrealized holding gains (losses) on available-for-sale securities ....... (1,277) Accumulated net gains (losses) on cash flow hedges.. 0 Cumulative foreign currency translation adjustments....... 16 -------- Total equity capital....... 18,392 -------- Total liabilities and equity capital....... $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. DIRECTORS HELENE L. KAPLAN HENRY B. SCHACHT 5 EX-25.7 23 FORM T-1 (PREFERRED SECURITIES-MRM CAP. TRST III) Exhibit 25.7 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee ---------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- MRM Capital Trust III (Exact name of obligor as specified in its charter) ---------------- Delaware (Applied for) (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification No.) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, Philadelphia, PA 19103 and telephone number, (215) 963-1600 including area code, (Name, address and telephone of principal executive offices) number of agent for service) ---------------- Preferred Securities (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By ----------------------------------- Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices.......................................... $102,421 Noninterest-bearing ......................................... $ 41,580 Interest-bearing ............................................ 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's....................................................... 108,233 Noninterest-bearing ........................................... $ 6,061 Interest-bearing .............................................. 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................................... 47,425 Demand notes issued to the U.S. Treasury....................... 100 Trading liabilities............................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................ 3,964 With a remaining maturity of more than one year through three years....................................................... 14 With a remaining maturity of more than three years........... 99 Bank's liability on acceptances executed and outstanding....... 608 Subordinated notes and debentures.............................. 5,430 Other liabilities.............................................. 11,886 -------- Total liabilities.......................................... 313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.................. $ 0 Common stock................................................... 1,211 Surplus (exclude all surplus related to preferred stock)....... 11,066 Undivided profits and capital reserves......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities ................................................... (1,277) Accumulated net gains (losses) on cash flow hedges............. 0 Cumulative foreign currency translation adjustments............ 16 -------- Total equity capital....................................... 18,392 -------- Total liabilities and equity capital....................... $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. ) HELENE L. KAPLAN ) DIRECTORS HENRY B. SCHACHT ) 5 EX-25.8 24 FORM T-1 (GUARANTEE OF MRM CAP TRUST I MRM) Exhibit 25.8 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee --------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ --------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) --------------- New York 13-4994650 (State of incorporation if not a (I.R.S. employer identification No.) national bank) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) --------------- Mutual Group Ltd. (Exact name of obligor as specified in its charter) --------------- Delaware 51-0239964 (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, of Philadelphia, PA 19103 principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Mutual Risk Management Ltd. (Exact name of guarantor as specified in its charter) --------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address and telephone number of Philadelphia, PA 19103 guarantor's principal offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Guarantee with respect to Preferred Securities of MRM Capital Trust I (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By __________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices........................................... $102,421 Noninterest-bearing........................................... $ 41,580 Interest-bearing.............................................. 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's. 108,233 Noninterest-bearing............................................. $ 6,061 Interest-bearing................................................ 102,172 Federal funds purchased and securities sold under agreements to repurchase..................................................... 47,425 Demand notes issued to the U.S. Treasury........................ 100 Trading liabilities............................................. 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................. 3,964 With a remaining maturity of more than one year through three years........................................................ 14 With a remaining maturity of more than three years............ 99 Bank's liability on acceptances executed and outstanding........ 608 Subordinated notes and debentures............................... 5,430 Other liabilities............................................... 11,886 -------- Total liabilities........................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus................... $ 0 Common stock.................................................... 1,211 Surplus (exclude all surplus related to preferred stock)........ 11,066 Undivided profits and capital reserves.......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities..................................................... (1,277) Accumulated net gains (losses) on cash flow hedges.............. 0 Cumulative foreign currency translation adjustments............. 16 -------- Total equity capital........................................ 18,392 -------- Total liabilities and equity capital........................ $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.9 25 FORM T-1 (GUARANTEE OF MRM CAP TRST II MRM) Exhibit 25.9 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee --------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ --------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) --------------- New York 13-4994650 (State of incorporation if not a (I.R.S. employer identification No.) national bank) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) --------------- Mutual Group Ltd. (Exact name of obligor as specified in its charter) --------------- Delaware 51-0239964 (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, of Philadelphia, PA 19103 principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Mutual Risk Management Ltd. (Exact name of guarantor as specified in its charter) --------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address and telephone number of Philadelphia, PA 19103 guarantor's principal offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Guarantee with respect to Preferred Securities of MRM Capital Trust II (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank By /s/ Kathleen Perry ----------------------------------- Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices...................................... $102,421 Noninterest-bearing ..................................... $ 41,580 Interest-bearing ........................................ 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's................................................... 108,233 Noninterest-bearing ....................................... $ 6,061 Interest-bearing .......................................... 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................. 47,425 Demand notes issued to the U.S. Treasury................... 100 Trading liabilities........................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less............ 3,964 With a remaining maturity of more than one year through three years............................................. 14 With a remaining maturity of more than three years....... 99 Bank's liability on acceptances executed and outstanding... 608 Subordinated notes and debentures.......................... 5,430 Other liabilities.......................................... 11,886 -------- Total liabilities...................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.............. $ 0 Common stock............................................... 1,211 Surplus (exclude all surplus related to preferred stock)... 11,066 Undivided profits and capital reserves..................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities ............................................... (1,277) Accumulated net gains (losses) on cash flow hedges......... 0 Cumulative foreign currency translation adjustments........ 16 -------- Total equity capital................................... 18,392 -------- Total liabilities and equity capital................... $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. ) HELENE L. KAPLAN ) DIRECTORS HENRY B. SCHACHT ) 5 EX-25.10 26 FORM T-1 (GUARANTEE OF MRM CAP TRST III MRM) Exhibit 25.10 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee --------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ --------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) --------------- New York 13-4994650 (State of incorporation if not a (I.R.S. employer identification No.) national bank) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) --------------- Mutual Group Ltd. (Exact name of obligor as specified in its charter) --------------- Delaware 51-0239964 (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) One Logan Square, Suite 1500 John Kessock, Jr. Philadelphia, PA 19103 c/o Commonwealth Risk Services, L.P. (215) 963-1600 One Logan Square, Suite 1500 (Address, including zip code, of Philadelphia, PA 19103 principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Mutual Risk Management Ltd. (Exact name of guarantor as specified in its charter) --------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address and telephone number of Philadelphia, PA 19103 guarantor's principal offices) (215) 963-1600 (Name, address and telephone number of agent for service) --------------- Guarantee with respect to Preferred Securities of MRM Capital Trust III (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By __________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices.......................................... $102,421 Noninterest-bearing.......................................... $ 41,580 Interest-bearing............................................. 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's....................................................... 108,233 Noninterest-bearing............................................ $ 6,061 Interest-bearing............................................... 102,172 Federal funds purchased and securities sold under agreements to repurchase.................................................... 47,425 Demand notes issued to the U.S. Treasury....................... 100 Trading liabilities............................................ 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................ 3,964 With a remaining maturity of more than one year through three years....................................................... 14 With a remaining maturity of more than three years........... 99 Bank's liability on acceptances executed and outstanding....... 608 Subordinated notes and debentures.............................. 5,430 Other liabilities.............................................. 11,886 -------- Total liabilities.......................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus.................. $ 0 Common stock................................................... 1,211 Surplus (exclude all surplus related to preferred stock)....... 11,066 Undivided profits and capital reserves......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities.................................................... (1,277) Accumulated net gains (losses) on cash flow hedges............. 0 Cumulative foreign currency translation adjustments............ 16 -------- Total equity capital....................................... 18,392 -------- Total liabilities and equity capital....................... $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.11 27 FORM T-1 (GUARANTEE OF MRM CAP TRST I MUTUAL G) Exhibit 25.11 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee ---------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation if not a (I.R.S. employer identification No.) national bank) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- Mutual Risk Management Ltd. (Exact name of obligor as specified in its charter) ---------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address, including zip code, of Philadelphia, PA 19103 principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) ---------------- Guarantee with respect to Preferred Securities of MRM Capital Trust I (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By __________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices........................................... $102,421 Noninterest-bearing........................................... $ 41,580 Interest-bearing.............................................. 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's. 108,233 Noninterest-bearing............................................. $ 6,061 Interest-bearing................................................ 102,172 Federal funds purchased and securities sold under agreements to repurchase..................................................... 47,425 Demand notes issued to the U.S. Treasury........................ 100 Trading liabilities............................................. 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................. 3,964 With a remaining maturity of more than one year through three years........................................................ 14 With a remaining maturity of more than three years............ 99 Bank's liability on acceptances executed and outstanding........ 608 Subordinated notes and debentures............................... 5,430 Other liabilities............................................... 11,886 -------- Total liabilities........................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus................... $ 0 Common stock.................................................... 1,211 Surplus (exclude all surplus related to preferred stock)........ 11,066 Undivided profits and capital reserves.......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities..................................................... (1,277) Accumulated net gains (losses) on cash flow hedges.............. 0 Cumulative foreign currency translation adjustments............. 16 -------- Total equity capital........................................ 18,392 -------- Total liabilities and equity capital........................ $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.12 28 FORM T-1 (GUARANTEE OF MRM CAP. TRST II-MUTUAL G) Exhibit 25.12 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under The Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee ---------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 Park Avenue New 10017 York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- Mutual Risk Management Ltd. (Exact name of obligor as specified in its charter) ---------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address, including zip code, Philadelphia, PA 19103 of principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) ---------------- Guarantee with respect to Preferred Securities of MRM Capital Trust II (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By __________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices........................................... $102,421 Noninterest-bearing........................................... $ 41,580 Interest-bearing.............................................. 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's. 108,233 Noninterest-bearing............................................. $ 6,061 Interest-bearing................................................ 102,172 Federal funds purchased and securities sold under agreements to repurchase..................................................... 47,425 Demand notes issued to the U.S. Treasury........................ 100 Trading liabilities............................................. 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................. 3,964 With a remaining maturity of more than one year through three years........................................................ 14 With a remaining maturity of more than three years............ 99 Bank's liability on acceptances executed and outstanding........ 608 Subordinated notes and debentures............................... 5,430 Other liabilities............................................... 11,886 -------- Total liabilities........................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus................... $ 0 Common stock.................................................... 1,211 Surplus (exclude all surplus related to preferred stock)........ 11,066 Undivided profits and capital reserves.......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities..................................................... (1,277) Accumulated net gains (losses) on cash flow hedges.............. 0 Cumulative foreign currency translation adjustments............. 16 -------- Total equity capital........................................ 18,392 -------- Total liabilities and equity capital........................ $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 EX-25.13 29 FORM T-1 (GUARANTEE OF MRM CAP. TRST III-MUTUAL G) Exhibit 25.13 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------- FORM T-1 STATEMENT OF ELIGIBILITY Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee ---------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____ ---------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) ---------------- New York 13-4994650 (State of incorporation if not a (I.R.S. employer identification No.) national bank) 270 Park Avenue 10017 New York, New York (Zip Code) (Address of principal executive offices) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ---------------- Mutual Risk Management Ltd. (Exact name of obligor as specified in its charter) ---------------- Bermuda N/A (State or other jurisdiction of (I.R.S. employer identification No.) incorporation or organization) 44 Church Street John Kessock, Jr. Hamilton HM 12 Bermuda c/o Commonwealth Risk Services, L.P. (441) 295-5688 One Logan Square, Suite 1500 (Address, including zip code, of Philadelphia, PA 19103 principal executive offices) (215) 963-1600 (Name, address and telephone number of agent for service) ---------------- Guarantee with respect to Preferred Securities of MRM Capital Trust III (Title of the indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T- 1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33- 50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 5th day of April, 2000. The Chase Manhattan Bank /s/ Kathleen Perry By __________________________________ Kathleen Perry Vice President 3 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions ------ -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 13,271 Interest-bearing balances..................................... 30,165 Securities: Held to maturity securities................................... 724 Available for sale securities................................. 54,770 Federal funds sold and securities purchased under agreements to resell.................................................... 26,694 Loans and lease financing receivables: Loans and leases, net of unearned income...................... $132,814 Less: Allowance for loan and lease losses..................... 2,254 Less: Allocated transfer risk reserve......................... 0 -------- Loans and leases, net of unearned income, allowance, and reserve........................................................ 130,560 Trading Assets.................................................. 53,619 Premises and fixed assets (including capitalized leases)........ 3,359 Other real estate owned......................................... 29 Investments in unconsolidated subsidiaries and associated companies...................................................... 186 Customers' liability to this bank on acceptances outstanding.... 608 Intangible assets............................................... 3,659 Other assets.................................................... 14,554 -------- Total assets................................................ $332,198 ========
4
Dollar Amounts LIABILITIES in Millions ----------- -------------- Deposits In domestic offices........................................... $102,421 Noninterest-bearing........................................... $ 41,580 Interest-bearing.............................................. 60,841 In foreign offices, Edge and Agreement subsidiaries and IBF's. 108,233 Noninterest-bearing............................................. $ 6,061 Interest-bearing................................................ 102,172 Federal funds purchased and securities sold under agreements to repurchase..................................................... 47,425 Demand notes issued to the U.S. Treasury........................ 100 Trading liabilities............................................. 33,626 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less................. 3,964 With a remaining maturity of more than one year through three years........................................................ 14 With a remaining maturity of more than three years............ 99 Bank's liability on acceptances executed and outstanding........ 608 Subordinated notes and debentures............................... 5,430 Other liabilities............................................... 11,886 -------- Total liabilities........................................... $313,806 ======== EQUITY CAPITAL -------------- Perpetual preferred stock and related surplus................... $ 0 Common stock.................................................... 1,211 Surplus (exclude all surplus related to preferred stock)........ 11,066 Undivided profits and capital reserves.......................... 7,376 Net unrealized holding gains (losses) on available-for-sale securities..................................................... (1,277) Accumulated net gains (losses) on cash flow hedges.............. 0 Cumulative foreign currency translation adjustments............. 16 -------- Total equity capital........................................ 18,392 -------- Total liabilities and equity capital........................ $332,198 ========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Joseph L. Sclafani We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WILLIAM B. HARRISON, JR. HELENE L. KAPLAN DIRECTORS HENRY B. SCHACHT 5 -----END PRIVACY-ENHANCED MESSAGE-----