JUNIOR SUBORDINATED INDENTURE...RENAISSANCERE AND DEUTSCHE BANK TRUST COMPANY
Published on July 12, 2004
EXHIBIT 4.11
RENAISSANCERE HOLDINGS LTD., Issuer
to
DEUTSCHE BANK TRUST COMPANY AMERICAS, Trustee
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JUNIOR SUBORDINATED INDENTURE
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Dated as of July 9, 2004
Junior Subordinated Debt Securities
Reconciliation and Tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture Indenture
Act Section Section
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(S)(S)310(a)(1)..................................................... 6.7
(a)(2).............................................................. 6.7
(b)................................................................. 6.8
(S)(S)312(a)........................................................ 7.1
(b)................................................................. 7.2
(c)................................................................. 7.2
(S)(S).313(a)....................................................... 7.3
(b)(2).............................................................. 7.3
(c)................................................................. 7.3
(d)................................................................. 7.3
(S)(S).314(a)....................................................... 7.4, 10.8
(c)(1).............................................................. 1.2
(c)(2).............................................................. 1.2
(e)................................................................. 1.2
(f)................................................................. 1.2
(S)(S).316(a) (last sentence)....................................... 1.1
(a)(1)(A)........................................................... 5.2, 5.12
(a)(1)(B)........................................................... 5.13
(b)................................................................. 5.8
(S)(S).317(a)(1).................................................... 5.3
(a)(2).............................................................. 5.4
(b)................................................................. 10.3
(S)(S).318(a)....................................................... 1.8
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
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INDENTURE, dated as of July 9, 2004 (the "Indenture"), between
RENAISSANCERE HOLDINGS LTD., a company duly organized and existing under the
laws of Bermuda (hereinafter called the "Company"), having its principal
executive office located at Renaissance House, 8-12 East Broadway, Pembroke HM
19 Bermuda and Deutsche Bank Trust Company Americas, a New York banking
corporation (hereinafter called the "Trustee"), having its Corporate Trust
Office located at 60 Wall Street, 27th Floor, MS NYC60-2710, New York, New York
10005.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), including, without limitation, Securities issued to
evidence loans made to the Company of the proceeds from the issuance from time
to time by one or more RenaissanceRe Trusts (as defined herein) of preferred
beneficial interests in the assets of such Trusts (the "Preferred Securities")
and 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.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
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 (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined), as
follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(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 which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America and, except as otherwise herein
expressly provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the
United States of America at the date or time of such computation;
(4) the words "herein," "hereof," "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(5) 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").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act," when used with respect to any Holders, has the meaning
specified in Section 1.4.
"Additional Amounts" means any additional amounts which are required
by any Security, under circumstances specified herein or therein, to be paid by
the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"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 and which shall accrue at the rate
per annum specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.10.
"Additional Taxes" means the sum of any additional taxes, duties and
other governmental charges to which a RenaissanceRe Trust has become subject
from time to time as a result of a Tax Event.
"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 RenaissanceRe Trust to which
Securities 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 the meanings
correlative to the foregoing.
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"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Authorized Officer" means, when used with respect to the Company, the
Chairman of the Board of Directors, a Vice Chairman, the President, the Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Chief Investment Officer, the Chief Accounting Officer, the General Counsel,
the Secretary or an Assistant Secretary, of the Company.
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer. "Board of Directors" means the board
of directors of the Company or any committee of that board duly authorized to
act generally or in any particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day," with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation under a lease that
is required to be capitalized for financial reporting purposes in accordance
with generally accepted accounting principles, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Stock" in respect of any Corporation means Capital Stock of
any class or classes (however designated) which has no preference as to the
payment of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Corporation, and which is not
subject to redemption by such Corporation.
"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, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by an
Authorized Officer, and delivered to the Trustee.
"Company Senior Indebtedness" means, with respect to the Securities of
any particular series, all Indebtedness of the Company outstanding at any time,
except (a) the Securities of such series, (b) Indebtedness as to which, by the
terms of the instrument creating or evidencing the same, it is provided that
such Indebtedness is subordinated to or pari passu with the Securities of such
series, (c) Indebtedness of the Company to, or guaranteed on behalf of, a
Subsidiary of the Company or any officer, director or employee of the Company or
any Subsidiary of the Company, (d) interest accruing after the filing of a
petition initiating any proceeding relating to the Company referred to in
Section 5.1(6) and 5.1(7) unless such interest is an allowed claim enforceable
against the Company in a proceeding under federal or state bankruptcy laws, (e)
trade accounts payable, (f) any liability for income, franchise, real estate or
other taxes owed or owing and (g) any Indebtedness, including all other debt
securities and guarantees in respect of those debt securities, initially issued
to (x) any RenaissanceRe Trust or (y) any trust, partnership or other entity
affiliated with the Company which is a financing vehicle of the Company or any
Affiliate of the Company 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 Company pursuant to an instrument that
ranks pari passu with or junior in right of payment to the Preferred Securities
Guarantees.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which issued
such Foreign Currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community or
(ii) any currency unit or composite currency for the purposes for which it was
established.
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"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at Deutsche Bank Trust Company Americas, 60 Wall Street,
27th Floor, MS NYC60-2710, New York, New York 10005, Attention: Corporate Trust
and Agency Services or at any other time at such other address as the Trustee
may designate from time to time by notice to the parties hereto or at the
principal corporate trust office of any successor trustee as to which such
successor trustee may notify the parties hereto in writing.
"Corporation" includes corporations, limited liability companies,
incorporated associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Service, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Direct Action" has the meaning specified in Section 5.8.
"Distributions," with respect to any RenaissanceRe Trust, has the
meaning specified in the applicable Trust Agreement of such RenaissanceRe Trust.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 5.1.
"Extension Period" has the meaning specified in Section 3.11.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the euro, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments or confederation or association of governments which issued the
Foreign Currency in which the principal of or any premium or interest on such
Security or any Additional Amounts in respect thereof shall be payable, in each
case where the payment or payments thereunder are supported by the full faith
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and credit of such government or governments or confederation or association of
governments or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or such
other government or governments or confederation or association of governments,
in each case where the timely payment or payments thereunder are unconditionally
guaranteed as a full faith and credit obligation by the United States of America
or such other government or governments or confederation or association of
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Guarantee Agreement" means the Guarantee Agreement with respect to
the Preferred Securities of a RenaissanceRe Trust, substantially in such form as
may be specified as contemplated by Section 3.1 with respect to the Securities
of any series, in each case as amended from time to time.
"Holder," in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness" means, with respect to any Person, (i) the principal of
and any premium and interest on (a) indebtedness of such Person for money
borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise, the amount thereof being deemed to be the
lesser of the stated recourse, if limited, and the amount of the obligation or
dividends of the other Person; (vi) all obligations of the type referred to in
clauses (i) through (v) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such Person),
the amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and
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(vii) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi)
above.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity or upon acceleration
pursuant to Section 5.2 may be more or less than the principal face amount
thereof at original issuance.
"interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4 or 17.2, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Event" means, in respect of a RenaissanceRe Trust,
the receipt by such RenaissanceRe Trust of an Opinion of Counsel, rendered by an
independent law firm experienced in such matters, to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
such RenaissanceRe Trust is or will be considered an investment company that is
required to be registered under the 1940 Act, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities of such RenaissanceRe Trust.
"Judgment Currency" has the meaning specified in Section 1.17.
"Lien" means any mortgage, pledge, lien, security interest or other
encumbrance.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture or the related Series
Authorization, whether at the Stated Maturity or by declaration of acceleration,
notice of redemption or repurchase, notice of option to elect
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repayment or otherwise, and includes any Redemption Date and the date of any
required repurchase or repayment.
"New York Banking Day" has the meaning specified in Section 1.16.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Office" or "Agency," with respect to any Securities, means an office
or agency of the Company and the Guarantor maintained or designated as a Place
of Payment for such Securities pursuant to Section 10.2 or any other office or
agency of the Company and the Guarantor maintained or designated for such
Securities pursuant to Section 10.2 or, to the extent designated or required by
Section 10.2 in lieu of such office or agency, the Corporate Trust Office of the
Trustee.
"Officers' Certificate" means a certificate signed by an Authorized
Officer, at least one of which is a principal executive, principal financial or
principal accounting officer, that complies with the requirements of Section
314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, as the case may be, or other counsel who
shall be reasonably acceptable to the Trustee, that, if required by the Trust
Indenture Act, complies with the requirements of Section 314(e) of the Trust
Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture or the related Series Authorization which provides for
declaration of an amount less than the principal face amount thereof to be due
and payable upon acceleration pursuant to Section 5.2.
"Outstanding," when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
(b) any such Security for whose payment at the Maturity thereof money in
the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 4.2) 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 or the Guarantor (if the
Company shall act as its own, or authorize the Guarantor to act as,
Paying Agent) for the Holders of such Securities and any Coupons
appertaining thereto or for the payment of which Government
Obligations shall have been theretofore deposited pursuant hereto with
the Trustee in accordance with Section 4.1; 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;
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(c) any such Security with respect to which the Company or the Guarantor
has effected defeasance pursuant to the terms hereof, except to the
extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof satisfactory to it that
such Security is held by a protected purchaser in whose hands such
Security is a valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into securities of the Company or the Guarantor or another
issuer, if the terms of such Security provide for such conversion or
exchange pursuant to Section 3.1;
provided, however, 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 or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of any Indexed Security that may be counted in making such determination and
that shall be deemed Outstanding for such purposes shall be equal to the
principal amount of such Indexed Security at original issuance, unless otherwise
provided in or pursuant to this Indenture or the related Series Authorization,
and (ii) the principal amount of a Security denominated in a Foreign Currency
shall be the Dollar equivalent, determined on the date of original issuance of
such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the then current principal amount) of such Security, unless
otherwise provided in or pursuant to Section 14.1, any other provision of this
Indenture or the related Series Authorization, and (iii) 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 making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which shall have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee (A) the pledgee's right so to act with respect to
such Securities and (B) that the pledgee is not the Company or any other obligor
upon the Securities or any Coupons appertaining thereto or an Affiliate of the
Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such
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Security are payable as provided in or pursuant to this Indenture or the related
Series Authorization.
"Preferred Securities" has the meaning specified in the first recital
of this Indenture.
"Preferred Securities Guarantee" means the guarantee by RenaissanceRe
Holdings Ltd., in its capacity as guarantor with respect to the Preferred
Securities of a RenaissanceRe Trust, of distributions on such Preferred
Securities to the extent provided in the Guarantee Agreement.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Preferred Stock" in respect of any Corporation means Capital Stock of
any class or classes (however designated) which is preferred as to the payment
of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Corporation, over shares of
Capital Stock of any other class of such Corporation.
"principal" means as of any date of determination with respect to the
Securities of any series, (i) in the case of an Original Issue Discount Security
or an Indexed Security, the amount due and payable with respect to principal
upon an acceleration thereof pursuant to Section 5.2 at such time and (ii) in
all other cases, par or the stated face amount of the related Security.
"Property Trustee," with respect to any RenaissanceRe Trust, means the
entity acting in the capacity of Property Trustee pursuant to the related Trust
Agreement.
"Redemption Date," with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or the related Series Authorization.
"Redemption Price," with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or the related Series Authorization, exclusive of
accrued interest and any Additional Amounts with respect to accrued interest.
"Registered Security" means any Security established pursuant to
Section 2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or the related Series Authorization as the
"Regular Record Date".
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"RenaissanceRe Trusts" means, collectively, RenaissanceRe Capital
Trust, RenaissanceRe Capital Trust II, each a statutory business trust formed
under the laws of the State of Delaware, and any other similar trust created to
issue Trust Securities and to use the proceeds from the sale thereof to purchase
Securities issued under this Indenture.
"Required Currency" has the meaning specified in Section 1.17.
"Responsible Officer" means any officer within the Corporate Trust
Office of the Trustee, including any vice president, any assistant vice
president, director, managing director, associate, or any trust officer 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.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness," with respect to the Securities of any
particular series, means Company Senior Indebtedness with respect to the
Securities of such series.
"Series Authorization" means, with respect to any series or class of
Securities, (i) a Board Resolution and Officers' Certificate or (ii) one or more
indentures supplemental hereto, establishing such series or class of Securities
and setting forth the terms thereof, including, in either case, a form of note
or notes representing such Securities.
"Special Event" means an Investment Company Event or a Tax Event.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity," with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or the
related Series Authorization 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.
"Subsidiary" means, in respect of any Person, any Corporation, limited
or general partnership or other business entity of which at the time of
determination more than 50% of the voting power of the shares of its Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is owned or controlled, directly or
indirectly, by (i) such Person, (ii)
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such Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Tax Event" means, in respect of a RenaissanceRe Trust, the receipt by
such RenaissanceRe Trust or the Company of an Opinion of Counsel, rendered by an
independent law firm experienced in such matters, to the effect that, as a
result of 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 as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Preferred Securities of such RenaissanceRe Trust, there is more
than an insubstantial risk that (i) such RenaissanceRe Trust is, or will be
within 90 days of the date of such Opinion of Counsel, subject to United States
Federal income tax with respect to income received or accrued on the
corresponding series of Securities, (ii) interest payable by the Company on the
corresponding series of Securities is not, or within 90 days of the date of such
Opinion of Counsel will not be, deductible by the Company, in whole or in part,
for United States Federal income tax purposes or (iii) such RenaissanceRe Trust
is, or will be within 90 days of the date of such Opinion of Counsel, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"Trust Agreement" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by an Amended and Restated Trust
Agreement substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as
amended from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trust Securities," with respect to any RenaissanceRe Trust, means,
collectively, the Common Securities and Preferred Securities issued by such
RenaissanceRe Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
"United States," except as otherwise provided in or pursuant to this
Indenture or any Series Authorization, means the United States of America
(including the states thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
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"United States Alien," except as otherwise provided in or pursuant to
this Indenture or any Series Authorization, means any Person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust,
or a foreign partnership one or more of the members of which is, for United
States Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture or the related Series Authorization, which Person must be, to the
extent required by applicable law or regulation, a clearing agency registered
under the Securities Exchange Act of 1934, as amended, and, if so provided with
respect to any Security, any successor to such Person. If at any time there is
more than one such Person, "U.S. Depository" or "Depository" shall mean, with
respect to any Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "Vice President".
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the individual signing such certificate
or opinion has read such condition or covenant and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
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(d) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
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.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such 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 provided that such counsel, after reasonable inquiry, has no
reason to believe and does not believe that the certificate or opinion or
representations with respect to such matters are erroneous.
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 or any Security, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture
to be given or taken by Holders or by holders of Preferred Securities may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders or holders of Preferred Securities, as
applicable, in person or by an agent duly appointed in writing. If, but
only if, Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in or pursuant to this Indenture or the related Series
Authorization to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders
of Securities of such series voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article 15, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
received by a Responsible Officer of the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders or holders of
Preferred Securities signing such instrument or instruments or so voting at
any such meeting. Proof of execution of any such instrument
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or of a writing appointing any such agent, or of the holding by any Person
of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the Trust Indenture Act) conclusive in favor of
the Trustee, the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section
15.6.
(2) Without limiting the generality of this Section 1.4, unless
otherwise provided in or pursuant to this Indenture or the related Series
Authorization, a Holder, including a U.S. Depository that is a Holder of a
global Security, may make, give or take, by a proxy or proxies, duly
appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other Act provided in or pursuant to this
Indenture or the related Series Authorization to be made, given or taken by
Holders, and a U.S. Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of interests in any
such global Security through such U.S. Depository's standing instructions
and customary practices.
(3) The Company shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to
this Indenture or the related Series Authorization to be made, given or
taken by Holders. If such a record date is fixed, the Holders on such
record date or their duly appointed proxy or proxies, and only such
Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other Act, whether or
not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other Act
shall be valid or effective if made, given or taken more than 90 days after
such record date.
(4) The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further
proof, including written proof, with respect to any of the matters referred
to in this Section.
(5) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement
and the date of the termination of holding the same, shall be proved by the
Security Register.
(6) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the
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certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or
(ii) such Bearer Security is produced to the Trustee by some other Person,
or (iii) such Bearer Security is surrendered in exchange for a Registered
Security, or (iv) such Bearer Security is no longer Outstanding. The
ownership, principal amount and serial numbers of Bearer Securities held by
the Person so executing such instrument or writing and the date of the
commencement and the date of the termination of holding the same may also
be proved in any other manner which the Company and the Trustee deem
sufficient.
(7) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option (but is
not obligated to), by Board Resolution fix in advance a record date for the
determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of Registered Securities of
record at the close of business on such record date shall be deemed to be
Holders for the purpose of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver
or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
(8) Any request, demand, authorization, direction, notice,
consent, waiver or other Act 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 or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such Act is made upon such
Security.
Section 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its
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Treasurer, with a copy to the attention of its General Counsel, at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture or the related Series Authorization, where this Indenture provides for
notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event, at
his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee in writing that such stock exchange so
requires, on a Business Day at least twice, the first such publication to
be not earlier than the earliest date and the second such publication not
later than the latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 of
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Securities shall be filed in writing 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. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company or the Guarantor, as the case may
be, so elects, any published notice may be in an official language of the
country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 1.9. 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 1.10. 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 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
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 1.12. Holders of Preferred Securities as Third Party Beneficiaries.
The Company hereby acknowledges that, to the extent specifically set
forth herein, the holders of the Preferred Securities of a RenaissanceRe Trust
shall expressly be third party beneficiaries of this Indenture. The Company
further acknowledges that, if an Event of Default has occurred and is continuing
and is attributable to the failure of the Company to pay the principal of or
premium, if any, or interest on or Additional Amounts with respect to the
Securities of the series held by such RenaissanceRe Trust, any holder of the
Preferred Securities of such RenaissanceRe Trust may institute a Direct Action
against the Company.
Section 1.13. Benefits of Indenture.
Except as other expressly provided herein with respect to holders of
Preferred Securities, nothing in this Indenture, any Security or any Coupon,
express or implied, shall give to any Person, other than the parties hereto and
the holders of Senior Indebtedness, any Security
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Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.14. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
Section 1.15. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or the
related Series Authorization, in any case where any Interest Payment Date,
Stated Maturity or Maturity of any Security, or the last date on which a Holder
has the right to convert or exchange Securities of a series that are convertible
or exchangeable, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date, and such Securities need not be converted or
exchanged on such date, but such payment may be made, and such Securities may be
converted or exchanged, on the next succeeding day that is a Business Day at
such Place of Payment, and no interest shall accrue on the amount payable on
such date or at such time for the period from and after such Interest Payment
Date, Stated Maturity, Maturity or last day for conversion or exchange, as the
case may be, to such next succeeding Business Day, except that if such next
succeeding Business Day is in the next succeeding calendar year, such payment
may be made, and such Securities may be converted or exchanged, on the
immediately preceding Business Day (in the case of each of the foregoing, with
the same force and effect as if made on such Interest Payment Date or at such
Stated Maturity or Maturity or on such last day for conversion or exchange, as
the case may be).
Section 1.16. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.17. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of,
or premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the requisite amount of the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency,
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except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any other sum due
under this Indenture. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to be closed.
Section 1.18. No Security Interest Created.
Nothing in this Indenture or in any Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
Section 1.19. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder (except in a shareholder's corporate capacity as Guarantor), officer
or director, as such, past, present or future, of the Company, either directly
or through the 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 this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareholders, officers or directors, as such, of the Company, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any Security or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Security.
Section 1.20. Submission to Jurisdiction.
The Company agrees that any judicial proceedings instituted in
relation to any matter arising under this Indenture, the Securities or any
Coupons appertaining thereto 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
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rendered in such proceeding. The Company also irrevocably and unconditionally
waives for the benefit of the Trustee and the Holders of the Securities and
Coupons 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 Indenture. The
Company hereby irrevocably designates and appoints for the benefit of the
Trustee and the Holders of the Securities and Coupons for the term of this
Indenture Glencoe U.S. Holdings Inc., 5080 Spectrum Drive, Suite 900 East,
Addison, Texas 75001, c/o Ms. Tracy H. Bowden, General Counsel and Secretary, 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 RenaissanceRe Holdings Ltd.,
Renaissance House, 8-12 East Broadway, Pembroke HM 19 Bermuda, Attention: Chief
Financial Officer) 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 Coupons or the obligations of the Company hereunder remain
outstanding, or 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 in writing of the name and address of such successor.
The Company further agrees for the benefit of the Trustee and the Holders of the
Securities and the Coupons 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 Glencoe U.S. Holdings Inc. as
its agent in full force and effect so long as any of the Securities or Coupons
or the respective 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 to serve process in any other manner permitted by any law or limit the
right of the Trustee or any Holder to institute proceedings against the Company
in the courts of any other jurisdiction or jurisdictions.
ARTICLE II.
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to the related Series Authorization, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by or pursuant to this Indenture or the related Series
Authorization or any indenture supplemental hereto and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the officers executing
such Security or Coupon as evidenced by their execution of such Security or
Coupon.
Unless otherwise provided in or pursuant to the related Series
Authorization, the Securities shall be issuable in registered form without
Coupons and shall not be issuable upon the exercise of warrants.
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Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By
------------------------------------
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to the related Series
Authorization, the Securities of a series shall not be issuable in temporary or
permanent global form. If Securities of a series shall be issuable in global
form, any such Security may provide that it or any number of such Securities
shall represent the aggregate amount of all Outstanding Securities of such
series (or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased or
reduced to reflect exchanges. Any endorsement of any Security in global form to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Securities represented thereby shall be made
in such manner and by such Person or Persons as shall be specified therein or in
the Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing and, with respect to
matters set forth in this Section 2.3, need not be accompanied by or contained
in an Officers' Certificate and need not be accompanied by an Opinion of
Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to the related Series Authorization, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
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Notwithstanding the provisions of Section 3.8 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 3.1.
ARTICLE III.
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series. The Securities of each series shall be
subordinated in right of payment to all Company Senior Indebtedness with respect
to such series as provided in Article 16.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in the related Series Authorization the
following:
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant to
Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part of any
Registered Security of such series pursuant to Article 13, upon surrender
in part of any Registered Security for conversion into other securities of
the Company or exchange for securities of the Guarantor or another issuer
pursuant to its terms, or pursuant to or as contemplated by the terms of
such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities and
Registered Securities, and whether the Bearer Securities are to be issuable
with Coupons, without Coupons or both, and any restrictions applicable to
the offer, sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities and
vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent global
form or both, (ii) whether beneficial owners of interests in any such
global Security may exchange such interests for definitive Securities of
the same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner
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specified in Section 3.5, and (iii) the name of the Depository or the U.S.
Depository, as the case may be, with respect to any such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer Security
or global Security shall be dated (if other than the date of original
issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest Payment
Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate or
rates are to be determined, the rate or rates and the extent to which
Additional Interest, if any, shall be payable in respect of such
Securities, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable on a cash basis and the Regular Record Date, if any, for
the interest payable on Registered Securities on any Interest Payment Date,
the right, pursuant to Section 3.11 hereof or as otherwise set forth
therein, of the Company to defer or extend an interest payment period and
the duration of any such Extension Period, including the maximum
consecutive period during which interest payment periods may be extended,
whether and under what circumstances Additional Amounts (other than those
set forth in Section 10.4) on such Securities or any of them shall be
payable, the notice, if any, to Holders regarding the determination of
interest on a floating rate Security and the manner of giving such notice,
and the basis upon which interest shall be calculated if other than that of
a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any premium
and interest on or any Additional Amounts with respect to such Securities
shall be payable, any of such Securities that are Registered Securities may
be surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or
demands to or upon the Company or the Guarantor in respect of such
Securities and this Indenture may be served, the extent to which, or the
manner in which, any interest payment or Additional Amounts on a global
Security on an Interest Payment Date, will be paid and the manner in which
any principal of or premium, if any, on any global Security will be paid;
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(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company;
(11) whether the Company is obligated to redeem or purchase any
of such Securities pursuant to any sinking fund or analogous provision or
at the option of any Holder thereof and, if so, the date or dates on which,
the period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into other securities of the Company and/or exchangeable for securities of
the Guarantor or another issuer, and if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, and any
deletions from or modifications or additions to this Indenture to permit or
to facilitate the issuance of such convertible or exchangeable Securities
or the administration thereof;
(14) if other than the principal face amount thereof, the portion
of the par or stated face amount of any of such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 5.2 or the method by which such portion is to be determined or,
in the case of Indexed Securities, the portion of the principal face amount
that shall be payable upon Stated Maturity or the method by which such
portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment
of the principal of, any premium or interest on or any Additional Amounts
with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or otherwise,
in Dollars or in a Foreign Currency other than that in which such
Securities are stated to be payable, the date or dates on which, the period
or periods within which, and the other terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the Currency in which such Securities are stated to
be payable and the Currency in which such Securities or any of them are to
be paid pursuant to such election, and any deletions from or modifications
of or additions to the terms of this Indenture to provide for or to
facilitate the issuance of Securities denominated or payable, at the
election of the Company or a Holder thereof or otherwise, in a Foreign
Currency;
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(17) whether the amount of payments of principal of, any premium
or interest on or any Additional Amounts with respect to such Securities
may be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity securities,
equity indices or other indices), and, if so, the terms and conditions upon
which and the manner in which such amounts shall be determined and paid or
payable;
(18) the relative degree, if any, to which Securities of such
series and the Guarantee in respect thereof shall be senior to or be
subordinated to other series of Securities and the Guarantee in respect
thereof or other Indebtedness of the Company or the Guarantor, as the case
may be, in right of payment, whether such other series of Securities or
other Indebtedness is outstanding or not;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company or the Guarantor with respect
to any of such Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
(20) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, or if Section 4.2(3) shall
apply, which covenants relating to the Securities of such series shall be
subject to covenant defeasance, and any deletions from, or modifications or
additions to, the provisions of Article 4 in respect of the Securities of
such series;
(21) the form or forms of the Trust Agreement (if different from
the form attached hereto as Annex A), Amended and Restated Trust Agreement
and Guarantee Agreement;
(22) whether, under what circumstances and the Currency in which,
the Company will pay Additional Amounts as contemplated by Section 10.4
with respect to the Securities of such series to any Holder who is a United
States Alien (including any modifications to the definition of such term)
in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities as
contemplated by Section 10.5 rather than pay such Additional Amounts;
(23) whether any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such Securities to
be authenticated and delivered;
(24) if any of such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
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(25) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security Registrar,
Paying Agent or Authenticating Agent with respect to such Securities; and
(26) any other terms of such Securities and any other deletions
from or modifications or additions to this Indenture in respect of such
Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture or the
related Series Authorization, the principal of, any premium and interest on and
any Additional Amounts with respect to the Securities shall be payable in
Dollars. Unless otherwise provided in or pursuant to this Indenture or the
related Series Authorization, Registered Securities denominated in Dollars shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities denominated in Dollars
shall be issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture or the related Series
Authorization.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, a Vice Chairman, its President, its Treasurer or a Vice President
under its corporate seal reproduced thereon and attested by its Secretary or one
of its Assistant Secretaries. Coupons shall be executed on behalf of the Company
by the Treasurer or any Assistant Treasurer of the Company. The signature of any
of these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
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Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company and the Guarantor, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities and Coupons or did not hold such
offices at the date of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in, and may conclusively rely
upon,
(1) an Opinion or Opinions of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining
thereto, have been complied with and that such Securities and
Coupons, when completed by appropriate insertions, executed under
the Company's corporate seal and attested by duly authorized
officers of the Company, delivered by duly authorized officers of
the Company to the Trustee for authentication pursuant to this
Indenture, and 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 legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement
thereof may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and will entitle the Holders
thereof to the benefits of this Indenture, including the
Guarantee; such Opinion of Counsel need express no opinion as to
the availability of equitable remedies;
(c) all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if
any, have been complied with; and
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(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officers' Certificate and a Guarantor's Officers'
Certificate, in each case stating that, to the best knowledge of the
Persons executing such certificate, all conditions precedent to the
execution, authentication and delivery of such Securities and Coupons, if
any, appertaining thereto, have been complied with, and no event which is,
or after notice or lapse of time would become, an Event of Default with
respect to any of the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate and Guarantor's Officers' Certificate at the time of issuance of
each Security, but such opinion and certificates, with appropriate
modifications, shall be delivered at or before the time of issuance of the first
Security of such series. After any such first delivery, any separate written
request by an Authorized Officer of the Company or any person designated in
writing by an Authorized Officer that the Trustee authenticate and deliver
Securities of such series for original issue will be deemed to be a
certification by the Company and the Guarantor that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with and that no Event of Default with
respect to any of the Securities has occurred or is continuing.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities, nor will it be liable for
its refusal to authenticate or cause an Authenticating Agent to authenticate any
Securities, if the issue of such Securities will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee or if
the Trustee, being advised by counsel, determines that such action may not
lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to the related Series
Authorization.
No Security or Coupon appertaining thereto 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 in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed,
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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, in registered form or, if authorized in or pursuant to
this Indenture or the related Series Authorization, in bearer form with one or
more Coupons or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee upon Company Order shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series and containing identical terms and provisions;
provided, however, that no definitive Bearer Security, except as provided in or
pursuant to this Indenture or the related Series Authorization, shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in or
pursuant to this Indenture or the related Series Authorization. Unless otherwise
provided in or pursuant to this Indenture or the related Series Authorization
with respect to a temporary global Security, 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. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the related Series Authorization, the Trustee shall be the initial Security
Registrar for each series of Securities. The Company shall have the right to
remove and replace from time to time the Security Registrar for any series of
Securities; provided that no such removal or replacement shall be effective
until a successor Security Registrar with respect to such series of Securities
shall have been appointed by the Company and shall have accepted such
appointment by the Company. In the event that the Trustee shall not be or shall
cease to be Security Registrar with respect to a series of Securities, it shall
have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of
Securities.
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Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture or
the related Series Authorization, of a like aggregate principal amount bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture or the related Series
Authorization, with respect to Securities of any series, at the option of the
Holder, Bearer Securities of such series may be exchanged for Registered
Securities of such series containing identical terms, denominated as authorized
in or pursuant to this Indenture or the related Series Authorization and in the
same aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company,
the Guarantor and the Trustee in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Company, the Guarantor and the Trustee if there is
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for such
series located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such Office or Agency for
such series in exchange for a Registered Security of such series and like tenor
after the close of business at such Office or Agency on (i) any Regular Record
Date and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such Office or Agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date or proposed date of payment, as the case
may be (or, if such Coupon is so surrendered with such Bearer Security, such
Coupon shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
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If provided in or pursuant to this Indenture or the related Series
Authorization, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture or the related Series Authorization.
Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture or the related Series Authorization, any global
Security shall be exchangeable for definitive Securities only if (i) the
Depository is at any time unwilling, unable or ineligible to continue as
depository and a successor depository is not appointed by the Company within 90
days of the date the Company is so informed in writing, (ii) the Company
executes and delivers to the Trustee a Company Order to the effect that such
global Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such interests
for definitive Securities as the result of an event described in clause (i),
(ii) or (iii) of the preceding sentence, then without unnecessary delay but in
any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this Indenture or
the related Series Authorization, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the U.S. Depository or such other Depository as shall be
specified in the Company Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depository or such other
Depository, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officers' Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described above
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the form
in which the Securities are issuable, as provided in or pursuant to this
Indenture or the related Series Authorization) shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof, but subject to the satisfaction of
any certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture or the
related Series Authorization) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following
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any such exchange in part, such global Security shall be returned by the Trustee
to such Depository or the U.S. Depository, as the case may be, or such other
Depository or U.S. Depository referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor,
respectively, evidencing the same debt and entitling the Holders thereof to the
same benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture or the
related Series Authorization, the Company shall not be required (i) to issue,
register the transfer of or exchange any Securities during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption of Securities of like tenor and the same series under Section 11.4
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Registered Security selected for
redemption in whole or in part, except in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) to exchange
any Bearer Security selected for redemption except, to the extent provided with
respect to such Bearer Security, that such Bearer Security may be exchanged for
a Registered Security of like tenor and the same series, provided that such
Registered Security shall be immediately surrendered for redemption with written
instruction for payment consistent with the provisions of this Indenture or (iv)
to issue, register the transfer of or exchange any Security which, in accordance
with its terms, has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
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Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company, the Guarantor and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or Coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company, the Guarantor or the Trustee that such
Security or Coupon has been acquired by a protected purchaser, the Company shall
execute and, upon the Company's request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or
stolen Coupon appertains with all appurtenant Coupons not destroyed, lost or
stolen, a new Security of the same series containing identical terms and of like
principal amount and bearing a number not contemporaneously outstanding, with
Coupons appertaining thereto corresponding to the Coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon 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 or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture or the related Series Authorization, any interest on Bearer Securities
and any Additional Amounts with respect to such interest shall be payable only
upon presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, 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 and the fees and
expenses of the Trustee's counsel) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company and the
Guarantor, whether or not the destroyed, lost or stolen Security and Coupons
appertaining thereto or the destroyed, lost or stolen Coupon 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 such
series and any Coupons, if any, duly issued hereunder.
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The provisions of this Section 3.6, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
shall be 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 or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture or the
related Series Authorization, any interest on and any Additional Amounts with
respect to any Registered Security which shall be payable, and are punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name such Security (or one or more Predecessor Securities) is
registered as of the close of business on the Regular Record Date for such
interest.
Unless otherwise provided in or pursuant to this Indenture or the
related Series Authorization, any interest on and any Additional Amounts with
respect to any Registered Security which shall be payable, but shall not be
punctually paid or duly provided for, on any Interest Payment Date for such
Registered Security (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder thereof 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 Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed by the Company in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on such Registered Security, the Special Record Date therefor
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when so deposited to be
held in trust in a segregated trust account pursuant to express written
instructions of the Company for the benefit of the Person entitled to such
Defaulted Interest as in this Clause provided. The Special Record Date for
the payment of such Defaulted Interest 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 notification to the Trustee of the proposed
payment. The Trustee shall, in the name and at the expense of the Company,
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
the Holder of such Registered Security (or a Predecessor Security thereof)
at his address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee shall, in the name and at
the expense of the Company, cause a similar notice to be published at least
once in an Authorized Newspaper of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed
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payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after written notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
related Series Authorization of any particular series pursuant to the provisions
of this Indenture, at the option of the Company, interest on Registered
Securities that bear interest may be paid by mailing a check to the address of
the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer to an account maintained by the payee with a bank
located in the United States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into other securities of the Company or exchangeable for securities
of another issuer, which Registered Security is converted or exchanged after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Registered Security with respect to which the Stated Maturity is
prior to such Interest Payment Date), interest with respect to which the Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion or exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Registered Security which is converted or
exchanged, interest with respect to which the Stated Maturity is after the date
of conversion or exchange of such Registered Security shall not be payable.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
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respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository 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, any Paying Agent or the Security Registrar 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 for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion 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 and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly 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 or pursuant to this Indenture or the related Series Authorization. All
cancelled Securities and Coupons held by the Trustee shall be destroyed by the
Trustee, unless by a Company Order the Company directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or the
related Series Authorization, interest on the Securities shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 3.11. Extension of Interest Payment Period.
If specified as contemplated by Section 3.1 with respect to the
Securities of a particular series and subject to the terms, conditions and
covenants, if any, so specified, the Company shall have the right, at any time
and from time to time during the term of such series, 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, an "Extension Period"), during which
Extension Periods the Company shall have the right to make partial payments of
interest on any Interest Payment
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Date. No Extension Period shall end on a day 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 Additional
Interest thereon, if any, at the rate specified for the Securities of such
series to the extent permitted by applicable law). Prior to the termination of
any such Extension Period, the Company may further extend the interest payment
period, provided that no Extension Period shall exceed the period or periods
specified in such Securities or extend beyond the Stated Maturity of the
principal of such Securities. Upon termination of any 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 requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof.
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 Interest Payment Date or, with
respect to the Securities of a series issued to a RenaissanceRe Trust, prior to
the earlier of (i) the date the Distributions on the Preferred Securities of
such RenaissanceRe Trust are payable or (ii) the date the trustees of such
RenaissanceRe Trust are 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, but in
any event not less than one Business Day prior to such record date.
The Trustee shall promptly give notice of the Company's election to
begin any such Extension Period to the Holders of the outstanding Securities of
such series.
Section 3.12. Right of Set-Off.
With respect to the Securities of a series issued to a RenaissanceRe
Trust, notwithstanding anything to the contrary in this Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company, as
applicable, has theretofore made, or is concurrently on the date of such payment
making, a payment under the Preferred Securities Guarantee relating to such
Security or under Section 5.8 hereof, as applicable.
Section 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for United States Federal, state and local tax purposes it is intended that such
Security constitute indebtedness.
Section 3.14. Extension of Stated Maturity; Adjustment of Stated Maturity Upon
an Exchange.
If specified as contemplated by Section 3.1 with respect to the
Securities of a particular series, the Company shall have the right to (a)
change the Stated Maturity of the principal of the Securities of such series
upon the liquidation of the applicable RenaissanceRe Trust and the exchange of
such Securities for the Preferred Securities of such RenaissanceRe Trust, or (b)
extend the Stated Maturity of the principal of the Securities of such series;
provided
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that, at the time any election to extend such Stated Maturity is made and at the
time of such extension, (i) the Company is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Company is not in default in the payment
of any interest or principal or Additional Amounts on the Securities of such
series and no deferred interest payments thereon have accrued, (iii) the
applicable RenaissanceRe Trust is not in arrears on payments of Distributions on
its Preferred Securities and no deferred Distributions thereon have accumulated,
(iv) the Securities of such series are rated not less than BBB- by Standard &
Poor's Ratings Services or Baa3 by Moody's Investors Service, Inc. or the
equivalent by any other nationally recognized statistical rating organization
and (v) the extended Stated Maturity is no later than the 49th anniversary of
the initial issuance of the Preferred Securities of the applicable RenaissanceRe
Trust; provided, further, that, if the Company exercises its right to liquidate
the applicable RenaissanceRe Trust and exchange the Securities of such series
for the Preferred Securities of such RenaissanceRe Trust as specified in clause
(a) above, any changed Stated Maturity of the principal of the Securities of
such series shall be no earlier than the date that is five years after the
initial issue date of the Preferred Securities and no later than the date 30
years (plus an extended term of up to an additional 19 years if the
above-referenced conditions are satisfied) after the initial issue date of the
Preferred Securities of the applicable RenaissanceRe Trust.
Section 3.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP," "CINS" and
"ISIN" numbers (if then generally in use), and the Trustee shall use CUSIP, CINS
or ISIN numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders and no representation shall be made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of redemption or exchange.
ARTICLE IV.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than
(i) Coupons appertaining to Bearer Securities of such series
surrendered in exchange for Registered Securities of such series
and maturing after such exchange whose surrender is not required
or has been waived as provided in Section 3.5, (ii) Securities
and Coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section
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3.6, (iii) Coupons appertaining to Securities of such series
called for redemption and maturing after the relevant Redemption
Date whose surrender has been waived as provided in Section 11.7,
and (iv) Securities and Coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company, or discharged from such trust, as provided in Section
10.3) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company or
pursuant to the operation of a sinking fund, 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 (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose, (1) money in the Currency in which such Securities are payable in an
amount or (2) Government Obligations applicable to such Securities and any
Coupons appertaining thereto (determined on the basis of the Currency in which
such Securities and Coupons appertaining thereto are then specified as payable
at Stated Maturity) 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 with respect to such
Securities and any Coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient without consideration
of reinvestment of such principal and interest to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, including the principal
of, any premium and interest (including any Additional Interest) on, and any
Additional Amounts with respect to such Securities and any Coupons appertaining
thereto (based upon applicable law as in effect on the date of such deposit), to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding Securities
of such series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for
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relating to the satisfaction and discharge of this Indenture as to such
series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money or Government Obligations shall have
been deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the obligations of the Company and the Trustee with respect to the
Securities of such series under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Sections 10.4 and 17.2 (but only to the extent
that the Additional Amounts payable with respect to such Securities exceed the
amount deposited in respect of such Additional Amounts pursuant to Section
4.1(1)(b)), and with respect to any rights to convert or exchange such
Securities into securities of the Company or another issuer shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of this
Section 4.2 shall not be applicable with respect to the Securities of such
series or (ii) covenant defeasance of the Securities of or within a series
under clause (3) of this Section 4.2 shall not be applicable with respect
to the Securities of such series, then such provisions, together with the
other provisions of this Section 4.2 (with such modifications thereto as
may be specified pursuant to Section 3.1 with respect to any Securities),
shall be applicable to such Securities and any Coupons appertaining
thereto, and the Company may at its option by Board Resolution, at any
time, with respect to such Securities and any Coupons appertaining thereto,
elect to have Section 4.2(2) or Section 4.2(3) be applied to such
Outstanding Securities and any Coupons appertaining thereto upon compliance
with the conditions set forth below in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable to
this Section 4.2(2) with respect to any Securities of or within a series,
the Company shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities and any Coupons appertaining
thereto on the date the conditions set forth in clause (4) of this Section
4.2 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by such Outstanding
Securities and any Coupons appertaining thereto, and under the Guarantee in
respect thereof, which shall thereafter be deemed to be "Outstanding" only
for the purposes of clause (5) of this Section 4.2 and the other Sections
of this Indenture referred to in clauses (i) and (ii) below, and to have
satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto, and this Indenture insofar as such Securities
and any Coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute
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proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Outstanding Securities and any Coupons
appertaining thereto to receive, solely from the trust fund described in
clause (4) of this Section 4.2 and as more fully set forth in such clause,
payments in respect of the principal of (and premium, if any) and interest
(including any Additional Interest), if any, on, and Additional Amounts, if
any, with respect to, such Securities and any Coupons appertaining thereto
when such payments are due, and any rights of such Holder to convert such
Securities into other securities of the Company or exchange such Securities
for securities of another issuer, (ii) the obligations of the Company and
the Trustee with respect to such Securities under Sections 3.5, 3.6, 10.2
and 10.3 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Sections 10.4 and 17.2 (but only to the
extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant
to Section 4.2(4)(a) below), and with respect to any rights to convert such
Securities into other securities of the Company or exchange such Securities
for securities of another issuer, (iii) the rights, powers, trusts, duties
and immunities of the Trustee hereunder including, without limitation, the
compensation, reimbursement and indemnities provided in Section 6.6 herein
and (iv) this Section 4.2. The Company may exercise its option under this
Section 4.2(2) notwithstanding the prior exercise of its option under
clause (3) of this Section 4.2 with respect to such Securities and any
Coupons appertaining thereto.
(3) Upon the Company's exercise of the option to have this
Section 4.2(3) apply with respect to any Securities of or within a series,
the Company shall be released from their obligations under any covenant
applicable to such Securities specified pursuant to Section 3.1(20),
including any obligation to redeem or repurchase such securities at the
option of the Holder thereof, with respect to such Outstanding Securities
and any Coupons appertaining thereto, on and after the date the conditions
set forth in clause (4) of this Section 4.2 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any Coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with any such covenant or
obligation, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to such Outstanding Securities and any Coupons appertaining
thereto, 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 or such other covenant or obligation, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section
or such other covenant or obligation or by reason of reference in any such
Section or such other covenant or obligation to any other provision herein
or in any other document and such omission to comply shall not constitute a
default or an Event of Default under Section 5.1 but, except as specified
above, the remainder of this Indenture and such Securities and Coupons
appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 4.2 to any Outstanding Securities of or
within a series and any Coupons appertaining thereto:
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(a) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.7 who shall agree to comply with
the provisions of this Section 4.2 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 and any Coupons
appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2)
Government Obligations applicable to such Securities and Coupons
appertaining thereto (determined on the basis of the Currency in
which such Securities and Coupons appertaining thereto are then
specified as payable at Stated Maturity) 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 with respect to such
Securities and any Coupons appertaining thereto, money in an
amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (y) the principal of
(and premium, if any) and interest (including any Additional
Interest), if any, on, and any Additional Amounts with respect to
such Securities and Coupons appertaining thereto (based upon
applicable law as in effect on the date of such deposit), such
Outstanding Securities and any Coupons appertaining thereto at
the Stated Maturity or Redemption Date of such principal or
installment of principal or premium or interest and (z) any
mandatory sinking fund payments or analogous payments applicable
to such Outstanding Securities and any Coupons appertaining
thereto on the days on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities and any Coupons appertaining thereto, and, if
applicable, shall have made irrevocable arrangements satisfactory
to the Trustee for the redemption of any Securities to be
redeemed at the option of the Company in connection with such
deposit.
(b) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to
such Securities and any Coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit (after
giving effect thereto) and, with respect to defeasance only, no
event described in Section 5.1(7) or (8) at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period).
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(c) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to
which the Company is a party or by which it is bound.
(d) In the case of an election under clause (2) of this
Section 4.2, with respect to Registered Securities and any Bearer
Securities for which the Place of Payment is within the United
States, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received from
the Internal Revenue Service a letter ruling, or there has been
published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution of this Indenture, there has
been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 4.2 with respect to Registered Securities and any Bearer
Securities for which the Place of Payment is within the United
States, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such
Outstanding Securities and any Coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(f) With respect to defeasance only, the Company shall have
delivered to the Trustee an Officers' Certificate as to solvency
and the absence of any intent of preferring the Holders over any
other creditors of the Company.
(g) The Company and the Guarantor shall have delivered to
the Trustee an Officers' Certificate and the Company shall have
delivered to the Trustee an Opinion of Counsel, each stating that
all conditions precedent to the defeasance or covenant defeasance
under clause (2) or (3) of this Section 4.2 (as the case may be)
have been complied with.
(h) Notwithstanding any other provisions of this Section
4.2(4), such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions
or limitations which may be imposed on the Company in connection
therewith pursuant to Section 3.1.
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(5) Unless otherwise specified in or pursuant to this Indenture
or any Series Authorization, if, after a deposit referred to in Section
4.2(4)(a) has been made, (a) the Holder of a Security in respect of which
such deposit was made is entitled to, and does, elect pursuant to Section
3.1 or the terms of such Security to receive payment in a Currency other
than that in which the deposit pursuant to Section 4.2(4)(a) has been made
in respect of such Security, or (b) a Conversion Event occurs in respect of
the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has
been made, the indebtedness represented by such Security and any Coupons
appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and
premium, if any), and interest (including any Additional Interest), if any,
on, and Additional Amounts, if any, with respect to, such Security as the
same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the Currency in
which such Security becomes payable as a result of such election or
Conversion Event based on (x) in the case of payments made pursuant to
clause (a) above, the applicable market exchange rate for such Currency in
effect on the second Business Day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or 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 such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 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 a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto 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 Holders of such Securities and any Coupons appertaining thereto of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest (including any Additional Interest) and
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Additional Amounts, if any; but such money and Government Obligations need not
be segregated from other funds except to the extent required by law.
ARTICLE V.
REMEDIES
Section 5.1. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
related Series Authorization:
(1) default in the payment of any interest on any Security of
such 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 60 days (subject to any deferral of any due date in
the case of an Extension Period); or
(2) default in the payment of the principal of or any premium on
any Security of such series, 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
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than a
covenant or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the 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 such series or, if that series of Securities is
held by a RenaissanceRe Trust, the holders of at least 25% in liquidation
amount of the Preferred Securities of that RenaissanceRe Trust then
outstanding, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(4) if any event of default as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be
secured or evidenced, any Indebtedness of the Company for borrowed money
(other than Indebtedness which is non-recourse to the Company) shall happen
and shall consist of default in the payment of more than $100,000,000 or
its equivalent in other currencies in principal amount of such Indebtedness
when due (after giving effect to any applicable grace period) or shall
result in such Indebtedness in a principal amount in excess of
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$100,000,000 or its equivalent in other currencies becoming or being
declared due and payable prior to the date on which it would otherwise
become due and payable, and such default shall not be cured or waived or
such acceleration shall not be rescinded or annulled within a period of 30
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 such
series or, if that series of Securities is held by a RenaissanceRe Trust,
the holders of at least 25% in liquidation amount of the Preferred
Securities of that RenaissanceRe Trust then outstanding, a written notice
specifying such event of default and requiring the Company to cause such
default to be cured or waived or to cause such acceleration to be rescinded
or annulled or to cause such Indebtedness to be discharged and stating that
such notice is a "Notice of Default" hereunder; or
(5) 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 $100,000,000 or its equivalent in other currencies,
which is not stayed on appeal or is not otherwise being appropriately
contested in good faith; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company
in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization (other than a reorganization under a
foreign law that does not relate to insolvency) or other similar
law and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company or the Guarantor
to be insolvent, or approving a petition seeking reorganization
(other than a reorganization under a foreign law that does not
relate to insolvency), arrangement, adjustment or composition of
the Company and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official
of the Company or of any substantial part of the property of the
Company or ordering the winding up or liquidation of the affairs
of the Company; or
(7) the commencement by the Company of a voluntary proceeding
under any applicable bankruptcy, insolvency, reorganization (other than a
reorganization under a foreign law that does not relate to insolvency) or
other similar law or of a voluntary proceeding seeking to be adjudicated
insolvent or the consent by the Company to the entry of a decree or order
for relief in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any insolvency proceedings against it, or the filing by the Company of a
petition or answer or consent seeking reorganization, arrangement,
adjustment or composition of the Company or relief under any applicable
law, or the consent by the Company to the filing
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of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or similar official of
the Company or any substantial part of the property of the Company or the
making by the Company of an assignment for the benefit of creditors, or the
taking of corporate action by the Company in furtherance of any such
action; or
(8) any other or substitute Event of Default provided in or
pursuant to this Indenture or the related Series Authorization with respect
to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (6) or (7)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal shall
become immediately due and payable; provided that, in the case of Securities of
a series issued to a RenaissanceRe 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
Securities of such series, to be immediately due and payable, the holders of at
least 25% in liquidation amount of the Preferred Securities of such
RenaissanceRe Trust then outstanding shall have such right by a notice in
writing to the Company, the Trustee and the Property Trustee; and upon any such
declaration such principal or such lesser amount and all accrued and unpaid
interest (including any Additional Interest) thereon 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 Article 16.
If an Event of Default specified in clause (6) or (7) of Section 5.1
occurs, all unpaid principal of and accrued interest (including any Additional
Interest) on the Outstanding Securities of that series shall ipso facto 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.
At any time after a declaration of acceleration with respect to the
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 not less than a majority in principal amount of
the Outstanding Securities of such series (subject to, in the case of any series
of Securities held as assets of a RenaissanceRe Trust, such consent of the
holders of the Preferred Securities and the Common Securities of such
RenaissanceRe Trust as may be required under the Trust Agreement of such
RenaissanceRe Trust), by written notice to the Company, the Guarantor and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay
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(a) all overdue installments of any interest (including any
Additional Interest) on and Additional Amounts with respect to
all Securities of such series and any Coupon appertaining
thereto,
(b) the principal of and any premium on any Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon and any
Additional Amounts with respect thereto at the rate or rates
borne by or provided for in such Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments
of any interest and Additional Amounts at the rate or rates borne
by or provided for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and all other amounts due
the Trustee under Section 6.6; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of such
series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 5.13.
In the case of Securities of a series issued to a RenaissanceRe Trust,
should the Holders of such Securities fail to rescind and annul such declaration
and its consequences, the holders of a majority in liquidation amount of the
Preferred Securities of such RenaissanceRe Trust then outstanding shall have
such right by written notice to the Company, the Trustee and the Property
Trustee, subject to satisfaction of the conditions set forth in clauses (1) and
(2) above 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.
The Company covenants that if
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on or any Additional Amounts with
respect to any Security or any Coupon appertaining thereto when such
interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any
premium on any Security or any Additional Amounts with respect thereto at
their Maturity,
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the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest (including any Additional
Interest) upon the overdue principal, any premium and (to the extent that
payment of such interest shall be legally enforceable and, if the Securities are
held by a RenaissanceRe Trust, without duplication of any other amounts paid to
such RenaissanceRe Trust in respect thereof) upon any overdue installments of
interest and Additional Amounts at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount of money as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due to the Trustee under Section
6.6.
If the Company or the Guarantor fails to pay the money it is required
to pay the Trustee pursuant to the preceding paragraph forthwith upon the demand
of the Trustee, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and any Coupons appertaining thereto and collect the monies 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 such Securities and any Coupons
appertaining thereto, wherever situated.
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
and any Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company or the Guarantor for the payment of any overdue principal,
premium, interest (including any Additional Interest) or Additional Amounts)
shall be entitled and empowered, to the extent permitted by applicable law by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any applicable
series, of the principal and any premium, interest (including any
Additional Interest) and Additional Amounts owing and unpaid in respect of
the Securities and any Coupons appertaining thereto and to file such other
papers or documents as may be necessary or advisable in order to have the
claims
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of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents or counsel)
and of the Holders of Securities or any Coupons appertaining thereto
allowed in such judicial proceeding, and
(2) to collect and receive any monies 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 of Securities or any Coupons 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 of Securities or any Coupons, to pay
to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons 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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest (including any Additional Interest) or Additional Amounts,
upon presentation of the Securities or Coupons, or both, as the case may be, 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 and any
predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts 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 aggregate amounts due and payable on such
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Securities and Coupons for principal and any premium, interest (including any
Additional Interest) and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such 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;
(3) such Holder or Holders have offered to the Trustee such
indemnity as is reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such 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 of, any provision
of this Indenture or any Security to affect, disturb or prejudice the
rights of any other such Holders or Holders of Securities of any other
series, 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 such
Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5, 3.7 and 3.11) interest (including any Additional Interest) on,
and any Additional Amounts with respect to such Security or payment of such
Coupon, as the case may be, on the respective Stated Maturity or Maturities
therefor specified in such Security or Coupon (or, in the case of redemption, on
the Redemption Date or, in the case of repayment at the option of such Holder if
provided with respect to such Security, on the date such repayment is due) 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
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of a series issued to a RenaissanceRe Trust, any holder of Preferred Securities
issued by such RenaissanceRe Trust shall have the right, upon the occurrence of
an Event of Default described in Section 5.1(1) or 5.1(2) hereof, to institute
directly a proceeding against the Company or the Guarantor, as the case may be,
for enforcement of payment to such holder of principal of, and any premium and
(subject to Sections 3.5, 3.7 and 3.11) interest (including any Additional
Interest) on, and Additional Amounts with respect to, such Securities having a
principal amount equal to the liquidation amount of such Preferred Securities
held by such holder (a "Direct Action").
Notwithstanding any payments made to a holder of Preferred Securities
by the Company in connection with a Direct Action, the Company shall remain
obligated to pay the principal of and premium, if any, or interest on and
Additional Amounts, if any, with respect to the related Securities, and the
Company shall be subrogated to the rights of the holder of such Preferred
Securities with respect to payments on the Preferred Securities to the extent of
any payments made by the Company to such holder in any Direct Action.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has, or the
holders of Preferred Securities have, 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, to
such Holder or to the holders of such Preferred Securities, then and in every
such case the Company the Trustee and each such Holder or the holders of such
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 and each such Holder or the
holders of such Preferred Securities shall continue as though no such proceeding
had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee, to each and every Holder of a Security or a Coupon or
to the holders of Preferred Securities is intended to be exclusive of any other
right or remedy, and every right and remedy, to the extent permitted by law,
shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not, to the extent permitted by law, 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 Security
or Coupon or of the holders of Preferred 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 any
Holder of a Security or a Coupon or to the holders of Preferred Securities
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may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee, by such Holder or by such holders of Preferred Securities, as the
case may be.
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto and, in the case
of any Securities issued to a RenaissanceRe Trust, the holders of not less than
a majority in liquidation amount of the Preferred Securities issued by such
RenaissanceRe Trust then outstanding, may waive any past default hereunder with
respect to such series and its consequences, except a default
(1) 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 or any Coupons appertaining
thereto, or
(2) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company and the Guarantor each covenants that (to the extent that
it may lawfully do so) 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
expressly waives (to the extent that it may lawfully do so) all benefit or
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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.
Section 5.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his 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 or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 5.15 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series or, if
a series of Securities is held by a RenaissanceRe Trust, the holders of more
than 10% in liquidation amount of the Preferred Securities of that RenaissanceRe
Trust then outstanding, or to any suit instituted by any Holder or any holder of
Preferred Securities for the enforcement of the payment of the principal of (or
premium, if any) or interest (including any Additional Interest), if any, on or
Additional Amounts, if any, with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, and, in the case of repayment or
repurchase, on or after the date for repayment or repurchase) or for the
enforcement of the right, if any, to convert or exchange any Security into other
securities in accordance with its terms.
ARTICLE VI.
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper or
document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order, as
the case may be (in each case, other than delivery of any Security,
together with any Coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 3.3 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution, as the
case may be;
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(3) 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 shall be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(4) 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;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture or the
related Series Authorization at the request or direction of any of the
Holders of Securities of any series or any Coupons appertaining thereto
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee such security or indemnity as is reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) 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, coupon or other paper or document, but the Trustee, in its
discretion, may, but shall not be obligated to make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine, during business hours and upon reasonable
notice, the books, records and premises of the Company, personally or by
agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken or error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent, acted in bad faith or engaged in willful misconduct;
(9) the Authenticating Agent, Paying Agent, and Security
Registrar shall have the same protections as the Trustee set forth
hereunder;
(10) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with an Act of the Holders hereunder, and, to the extent not so provided
herein, with respect to any act requiring the Trustee to exercise its own
discretion, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
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trust or power conferred upon the Trustee, under this Indenture or any
Securities, unless it shall be proved that, in connection with any such
action taken, suffered or omitted or any such act, the Trustee was
negligent, acted in bad faith or engaged in willful misconduct;
(11) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee which conform to the requirements of the Indenture;
(12) except during the continuance of an Event of Default, the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
(13) except as expressly required by the terms of this Indenture,
none of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any liability, financial or
otherwise, 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 indemnity satisfactory to it
against such risk or liability is not assured to it; and
(14) in case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest (including any Additional
Interest), if any, on, or Additional Amounts or any sinking fund with respect
to, any Security of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the best interest
of the Holders of Securities and Coupons of such series; and provided, further,
that in the case of any default of the character specified in Section 5.1(4)
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. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and
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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 or the Coupons, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. 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 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Guarantor or the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Company or the
Guarantor with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder as agreed
in writing between the Company and the Trustee (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture or arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder (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
the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers, directors
and employees for, and to hold them harmless against, any loss, liability
or expense incurred, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties
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hereunder, except to the extent that any such loss, liability or expense
was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest (including any Additional Interest) on or any Additional Amounts with
respect to Securities or any Coupons appertaining thereto.
To the extent permitted by law, any compensation or expense incurred
by the Trustee after a default specified in or pursuant to Section 5.1 is
intended to constitute an expense of administration under any then applicable
bankruptcy or insolvency law. "Trustee" for purposes of this Section 6.6 shall
include any predecessor Trustee but the negligence or bad faith of any Trustee
shall not affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, that is eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000, and that is subject to supervision or examination
by Federal or state authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.8. Resignation and Removal; Appointment of Successor.
(1) 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 pursuant to
Section 6.9.
(2) 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 and the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 6.9 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 such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee, the Company and the Guarantor.
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(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act
with respect to Securities of any series after written request
therefor by the Company or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such
series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.7
and shall fail to resign after written request therefor by the
Company or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company, by or
pursuant to a Board Resolution, may remove the Trustee with
respect to all Securities or the Securities of such series, or
(ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a
successor Trustee or Trustees.
(5) 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 or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of such series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 6.9. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.9,
become the successor Trustee with respect to the Securities of such series
and to that extent 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 of
Securities and accepted appointment in the manner required by Section 6.9,
any Holder of a Security who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of
such series.
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(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Registered Securities, if any, of such
series as their names and addresses appear in the Security Register and, if
Securities of such series are issued as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of
Payment located outside the United States. 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.
(7) In no event shall any retiring Trustee be liable for the acts
or omissions of any successor Trustee hereunder.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Guarantor and the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on the written request of the
Company or such successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee
and, subject to Section 10.3, shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in
Section 6.6.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and such successor Trustee shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
such successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, 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 that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other Trustee
hereunder, and, upon the
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execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall have no further
responsibility for the exercise of rights and powers or for the performance
of the duties and obligations vested in the Trustee under this Indenture
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates;
but, on written request of the Company, the Guarantor or such successor
Trustee, such retiring Trustee, upon payment of its charges with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates and subject to Section 10.3 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated
by such supplemental indenture, the 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, subject
to its claim, if any, provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (1) or (2) of this
Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article.
Section 6.10. 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, shall be the
successor of the Trustee hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated but not delivered by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
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Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable
to the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, 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 must be acceptable to the Company and,
except as provided in or pursuant to this Indenture or the related Series
Authorization, shall at all times be a corporation that would be permitted by
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act, is authorized under applicable law and by its charter to
act as an Authenticating Agent and has a combined capital and surplus (computed
in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
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 agency or corporate trust business of an Authenticating Agent,
shall be the successor of such 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.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and the Guarantor. 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 which shall be acceptable to the Company and the Guarantor and shall (i)
mail written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Registered Securities, if any, of the series with respect to
which such Authenticating Agent shall serve, as their names and addresses appear
in the Security Register, and (ii) if Securities of the series are issued as
Bearer Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor Authenticating Agent has
its principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No
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successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to
each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By
--------------------------
as Authenticating Agent
By
--------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE VII.
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not
later than May 1 and November 1 of the year or upon such other dates as are
set forth in or pursuant to the Board Resolution or indenture supplemental
hereto authorizing such series, a list,
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in each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company or the Guarantor 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, provided, however, that
so long as the Trustee is the Security Registrar no such list shall be
required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing
with the first pursuant to Section 3.1, if required by Section 313(a) of
the Trust Indenture Act, the Trustee shall transmit, pursuant to Section
313(c) of the Trust Indenture Act, a brief report dated as of such
September 15 with respect to any of the events specified in said Section
313(a) which may have occurred since the later of the immediately preceding
September 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Sections
313(a) and 313(b)(2) of the Trust Indenture Act at the times specified
therein.
(3) September 15 following the first issuance of Securities
Reports pursuant to this Section shall be transmitted in the manner and to
the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 7.4. Reports by Company and Guarantor.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is not
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required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE VIII.
CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or amalgamate with or merge into any
other Person (other than a Subsidiary), or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
other Person (other than a Subsidiary), and the Company shall not permit any
other Person (other than an Subsidiary) to consolidate or amalgamate with or
merge into the Company or convey, transfer or lease its properties and assets as
an entirety or substantially as an entirety to the Company; unless:
(1) in case the Company shall consolidate or amalgamate with or
merge into another Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person as
aforesaid, the Person formed by such consolidation or amalgamation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company as an
entirety or substantially as an entirety shall be a Corporation organized
and existing under the laws of the United States of America , any state
thereof or the District of Columbia, Bermuda, the Cayman Islands or any
other country (including under the laws of any state, province or other
political subdivision thereof) which is on the date of this Indenture a
member of the Organization for Economic Cooperation and Development, or the
European Union, and shall expressly assume, by an indenture (or indentures,
if at such time there is more than one Trustee) supplemental hereto,
executed by the successor Person and delivered to the Trustee the due and
punctual payment of the principal of, any premium and interest (including
any Additional Interest) on and any
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Additional Amounts with respect to all the Securities and the performance
of every obligation in this Indenture and the Outstanding Securities on the
part of the Company to be performed or observed and shall provide for
conversion or exchange rights in accordance with the provisions of the
Securities of any series that are convertible or exchangeable into Common
Stock or other securities;
(2) immediately after giving effect to such transaction no Event
of Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing;
(3) in the case of the Securities of a series issued to a
RenaissanceRe Trust, such transaction is permitted under the related Trust
Agreement and does not give rise to any breach or violation of such Trust
Agreement; and
(4) either the Company or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer
or lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation or amalgamation by the Company with or merger
of the Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 8.1, the successor Person formed by such
consolidation or amalgamation 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 predecessor Person
shall be released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
Section 8.3. [RESERVED]
Section 8.4. [RESERVED]
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ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Company; or
(3) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of, any
premium or interest (including any Additional Interest) on or any
Additional Amounts with respect to Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect
the interests of the Holders of Outstanding Securities of any series or any
Coupons appertaining thereto in any material respect; or
(4) to establish the forms or terms of Securities of any series
and any Coupons appertaining thereto as permitted by Sections 2.1 and 3.1;
or
(5) 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 6.9; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not adversely affect
the interests of the Holders of Securities of any series then Outstanding
or any Coupons appertaining thereto or, in the case of Securities of a
series issued to a RenaissanceRe Trust and for so long as any of the
Preferred Securities issued by such RenaissanceRe Trust shall remain
outstanding, the holders of such Preferred Securities, in any material
respect; or
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(7) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all
or any series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article 4, provided that
any such action shall not adversely affect the interests of any Holder of
an Outstanding Security of such series and any Coupons appertaining thereto
or any other Outstanding Security or Coupon or, in the case of Securities
of a series issued to a RenaissanceRe Trust and for so long as any of the
Preferred Securities issued by such RenaissanceRe Trust shall remain
outstanding, the holders of such Preferred Securities, in any material
respect; or
(10) to secure the Securities of any series; or
(11) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in
any supplemental indenture, provided that no such amendment or supplement
shall materially adversely affect the interests of the Holders of any
Securities then Outstanding.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (and, in the case of any series of Securities held as
assets of a RenaissanceRe Trust, such consent of holders of the Preferred
Securities and the Common Securities of such RenaissanceRe Trust as may be
required under the Trust Agreement of such RenaissanceRe Trust), by Act of said
Holders delivered to the Company and the Trustee, the Company (when authorized
by or pursuant to a Company's 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 or of the Securities of such
series; provided, however, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest (including any Additional Interest) on
or any Additional Amounts with respect to, any Security, or reduce the
principal amount thereof (or modify the calculation of such principal
amount) or the rate (or modify the calculation of such rate) of interest
(including any Additional Interest) thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional
Amounts pursuant to such Security (except as contemplated by Section 8.1(1)
and permitted by Section 9.1(1)), or
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change the redemption provisions or adversely affect the right of repayment
at the option of any Holder as contemplated by Article 13, or change the
Place of Payment, Currency in which the principal of, any premium or
interest (including any Additional Interest) on, or any Additional Amounts
with respect to any Security 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, in the case of repayment at the option of the Holder, on or after
the date for repayment), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 15.4 for quorum or voting,
or
(3) modify any of the provisions of this Indenture relating to
the subordination of the Securities in respect thereof in a manner adverse
to Holders of Securities, or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 10.7, 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, or
(5) make any change that adversely affects the right to convert
or exchange any Security into or for securities of the Company or other
securities (whether or not issued by the Company), cash or property in
accordance with its terms, provided that, in the case of the Securities of
a series issued to a RenaissanceRe Trust, so long as any of the Preferred
Securities of such RenaissanceRe Trust remain outstanding, no such
amendment shall be made that adversely affects the holders of such
Preferred Securities, 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 liquidation amount of such Preferred
Securities then outstanding unless and until the principal of, any premium
or, subject to Section 3.7, interest (including any Additional Interest)
on, and any Additional Amounts with respect to, the Securities of such
series have been paid in full; and provided further that in the case of the
Securities of a series issued to a RenaissanceRe Trust, so long as any of
the Preferred Securities of such RenaissanceRe Trust remain outstanding, no
amendment shall be made to Section 5.8 of this Indenture without the prior
consent of the holder of each Preferred Security then outstanding unless
and until the principal of, any premium or, subject to Section 3.7,
interest (including any Additional Interest) on, and any Additional Amounts
with respect to, the Securities of such series have been paid in full.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of
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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.
It shall not be necessary for any Act of Holders of Securities or
holders of Preferred Securities 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.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
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 and an Officers' Certificate stating that all conditions precedent to
the execution of such supplemental indenture have been fulfilled. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities 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 a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. 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 Trustee and 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.
Section 9.6. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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Section 9.7. Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify or
eliminate the provisions of Article 16 or Article 18, as the case may be, in any
manner which might terminate or impair the subordination of the Securities of
any series to Company Senior Indebtedness with respect to such series without
the prior written consent of the holders of such Company Senior Indebtedness.
Section 9.8. Notice of Supplemental Indenture.
Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to Section 9.2, the Company shall
transmit to the Holders of Outstanding Securities of any series affected thereby
a notice setting forth the substance of such supplemental indenture.
ARTICLE X.
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest (including any Additional Interest) on and any
Additional Amounts with respect to the Securities of such series in accordance
with the terms thereof, any Coupons appertaining thereto and this Indenture. Any
interest due on any Bearer Security on or before the Maturity thereof, and any
Additional Amounts payable with respect to such interest, shall be payable only
upon presentation and surrender of the Coupons appertaining thereto for such
interest as they severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company except as otherwise permitted or
required in or pursuant to this Indenture or the related Series Authorization
shall maintain, subject to any laws or regulations applicable thereto, an Office
or Agency in a Place of Payment for such series which is located outside the
United States where Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment; provided, however, that if
the Securities of such series are listed on the London Stock Exchange or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the
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United States, as the case may be, so long as the Securities of such series are
listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such Office or
Agency. If at any time the Company shall fail to maintain any such required
Office or Agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment at the place specified for the purpose with respect to such Securities
as provided in or pursuant to this Indenture or the related Series
Authorization, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Except as otherwise permitted or required in or pursuant to this
Indenture or the related Series Authorization, no payment of principal, premium,
interest or Additional Amounts with respect to Bearer Securities shall be made
at any Office or Agency in the United States or by check mailed to any address
in the United States or by wire transfer to an account maintained with a bank
located in the United States; provided, however, if amounts owing with respect
to any Bearer Securities shall be payable in Dollars, payment of principal of,
any premium or interest on and any Additional Amounts with respect to any such
Security may be made at the Corporate Trust Office of the Trustee or any Office
or Agency designated by the Company and the Guarantor in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture or the related Series Authorization, the Company hereby designates as
the Place of Payment for each series of Securities the Borough of Manhattan, The
City of New York, and initially appoints the Corporate Trust Office of the
Trustee as the Office or Agency of the Company in the Borough of Manhattan, The
City of New York for such purpose. The Company may subsequently appoint a
different Office or Agency in the Borough of Manhattan, The City of New York for
the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
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Section 10.3. Money for Securities Payments to Be Held in Trust.
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 shall, on or before each due date of the principal of, any
premium or interest (including any Additional Interest) on or 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 in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to pay the
principal or any premium, interest (including any Additional Interest) or
Additional Amounts so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and shall promptly notify the
Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to 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 such series, deposit with
any Paying Agent a sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal and any premium, interest (including any
Additional Interest) or Additional Amounts so becoming due, such sum to be held
in trust for the benefit of the Persons entitled thereto, 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.
The Company shall 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 shall:
(1) hold all sums held by it for the payment of the principal of,
any premium or interest (including any Additional Interest) on or any
Additional Amounts with respect to Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as provided in or pursuant to this
Indenture or the related Series Authorization;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of, any premium or interest (including any Additional
Interest) on or any Additional Amounts with respect to the Securities of
such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
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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 terms 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 sums.
Except as otherwise provided herein or pursuant hereto, 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 or any Additional Amounts with respect to any
Security of any series or any Coupon appertaining thereto and remaining
unclaimed for two years after such principal or any such premium or interest or
any such Additional Amounts shall have become due and payable shall be paid to
the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any Coupon
appertaining thereto 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, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
at the expense of the Company may cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, 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 or mailing nor shall it be later than
two years after such principal or any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 10.4. Additional Amounts.
As contemplated by Section 3.1 and in accordance with this Section
10.4, if the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of a Security of such series or any
Coupon appertaining thereto Additional Amounts in accordance with the terms of
such series and this Section 10.4.
All payments of principal of and premium, if any, interest and any
other amounts on, or in respect of, the Securities of any series or any Coupon
appertaining thereto 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 (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, without limitation, a holding by a
court of competent jurisdiction or by a taxing authority in a taxing
jurisdiction or any political subdivision thereof). If a withholding or
deduction at source is required, the Company shall, subject to certain
limitations and exceptions set forth below, pay to the Holder of any such
Security or any Coupon
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appertaining thereto 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, any Coupons appertaining thereto and this
Indenture to be then due and payable; provided, however, that the Company 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: (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 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; (B) presented
such 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 or provided for, whichever is later, except to the extent that the
Holder 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, assessment or other governmental charge;
(3) any tax, 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 with any reasonable request by the Company addressed to the
Holder within 90 days of such request (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 as a precondition to exemption
from all or part of such tax, assessment or other governmental charge;
(4) any withholding or deduction required to be made pursuant to EU
Directive no. 2003/48 dated June 3, 2003 (JOUE L 157 published on June 26, 2003)
or to any other EU Directive or EU Regulation on the taxation of savings
deriving from the conclusions of the European Council Meeting held in Feira on
June 19-20, 2000 or of the ECOFIN Council Meetings of November 26-27, 2000,
December 13, 2001 and January 21, 2003 or pursuant to any law or regulation
implementing or complying with, or introduced in order to conform to, such EU
Directives or Regulations;
(5) any taxes, duties, levies, assessments or governmental charges that are
payable otherwise than by withholding from payments in respect of such Security;
or
(6) any combination of items (1), (2), (3), (4) and (5);
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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 who is a fiduciary or partnership or other than the sole
beneficial owner of such Security 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 or partner or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner 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 any Coupon 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 pursuant to Section 3.1 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 or the related Series Authorization of the applicable series, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to such 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
Officers' Certificate, the Company shall furnish to the Trustee and the
principal Paying Agent or Paying Agents, if other than the Trustee, an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and premium, if any, or interest or any
other amounts on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, fee, duty,
assessment or other governmental charge described in this Section 10.4 and the
Securities of such series. If any such withholding shall be required, then such
Officers' Certificate shall specify by taxing jurisdiction the amount, if any,
required to be withheld on such payments to such Holders of Securities or
Coupons, and the Company agrees to pay to the Trustee or such Paying Agent the
Additional Amounts required by this Section 10.4 and the terms of such
Securities. In the event that the Trustee or any Paying Agent, as the case may
be, shall not so receive the above-mentioned certificate, then the Trustee or
such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or Coupons appertaining thereto until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to such Securities of a series
and Coupons without withholding or deductions until otherwise advised. 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 Officers'
Certificate
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furnished pursuant to this Section 10.4 or in reliance on the Company's not
furnishing such an Officer's Certificate.
Section 10.5. Redemption for Tax Purposes
The Company may redeem the Securities of one or more series at its
option, in whole but not in part, at a Redemption Price equal to 100% of the
principal amount, together with accrued and unpaid interest and Additional
Amounts, if any, to the date fixed for redemption, at any time it receives an
Opinion of Counsel that as a result of (i) any change in or amendment to the
laws or treaties (or any regulations or rulings promulgated under these laws or
treaties) of Bermuda or any taxing jurisdiction (or of any political subdivision
or taxation authority affecting taxation) or any change in the application or
official interpretation of such laws, regulations or rulings, or (ii) any action
taken by a taxing authority of Bermuda or any taxing jurisdiction (or any
political subdivision or taxing authority affecting taxation) which action is
generally applied or is taken with respect to the Company, or (iii) a decision
rendered by a court of competent jurisdiction in Bermuda or any taxing
jurisdiction (or any political subdivision) whether or not such decision was
rendered with respect to the Company, there is a substantial probability that
the Company will be required as of the next Interest Payment Date to pay
Additional Amounts with respect to the Securities of such series as provided in
Section 10.4 and the terms of such Securities and such requirements cannot be
avoided by the use of reasonable measures (consistent with practices and
interpretations generally followed or in effect at the time such measures could
be taken) then available. If the Company elects to redeem the Securities of such
series under this provision it will give written notice of such election to the
Trustee. If the Company elects to redeem the Securities of such series under
this provision it will also mail a notice of redemption at least 30 days but no
more than 60 days before the Redemption Date to each Holder of the Securities to
be redeemed. Unless the Company defaults in the payment of the Redemption Price,
on and after the Redemption Date, interest will cease to accrue on the
Securities of such series so called for redemption. Any such redemption will be
subject to Article 11 hereof.
Section 10.6. Corporate Existence.
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and rights (charter and statutory) and franchises; provided, however,
that the foregoing shall not obligate the Company to preserve any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of its business and that the loss thereof is not
disadvantageous in any material respect to any Holder.
Section 10.7. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.6 or, if so specified in
the related Series Authorization, any other covenant set forth therein with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with such
term,
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provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 10.8. Company Statement as to Compliance; Notice of Certain Defaults.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the
principal executive officer, the principal financial officer or the
principal accounting officer of the Company, stating that
(a) a review of the activities of the Company during such
year and of its performance under this Indenture has been made
under his or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (a) the Company has complied with all the conditions and
covenants imposed on it under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any
such condition or covenant, specifying each such default known to
him or her and the nature and status thereof, and (b) no event
has occurred and is continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if such an
event has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
(2) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or any
event which after notice or lapse of time or both would become an Event of
Default pursuant to clause (4) of Section 5.1.
(3) The Trustee shall have no duty to monitor the Company's
compliance with the covenants contained in this Article 10 other than as
specifically set forth in this Section 10.8.
Section 10.9. [RESERVED]
Section 10.10. Additional Sums.
In the case of Securities of a series issued to a RenaissanceRe Trust,
except as otherwise specified as contemplated by Section 3.1, in the event that
(i) such RenaissanceRe Trust is the Holder of all of the Outstanding Securities
of such series, (ii) a Tax Event in respect of such RenaissanceRe Trust shall
have occurred and be continuing and (iii) the Company shall not have (i)
redeemed the Securities of such series pursuant to Section 11.8 or (ii)
terminated such RenaissanceRe Trust pursuant to Section 9.2(b) of the related
Trust Agreement, the Company shall pay to such RenaissanceRe Trust (and its
permitted successors or assigns under the related Trust Agreement), for so long
as such RenaissanceRe Trust (or its permitted successor or assignee) is the
registered holder of any Securities of such series, such additional
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amounts as may be necessary in order that the amount of Distributions then due
and payable by such RenaissanceRe 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 (the
"Additional Sums"). Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or any Coupon 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 Sums provided by
the terms of such series established hereby or pursuant hereto to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of Additional
Sums (if applicable) in any provision hereof shall not be construed as excluding
Additional Sums in those provisions hereof where such express mention is not
made, provided, however, that the extension of an interest payment period
pursuant to Section 3.11 or the terms of the applicable Securities shall not
extend the payment of any Additional Sums that may be due and payable during
such interest payment period.
Section 10.11. Prohibition Against Dividends, etc.
Except as otherwise specified as contemplated by Section 3.1, the
Company covenants and agrees with each Holder of Securities of a series issued
to a RenaissanceRe Trust that it will not, and will not permit any of its
Subsidiaries to, (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the outstanding capital stock of the Company or (b) make any payment of
principal of, interest or premium, if any, on or repay, repurchase or redeem any
debt security of the Company that ranks junior in interest to the Securities of
such series or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks junior in interest to the Securities of such series (other than
(i) dividends or distributions in Common Stock of the Company, (ii) redemptions
or purchases of any rights outstanding under a shareholder rights plan of the
Company or the declaration of a dividend of such rights or the issuance of stock
under such plans in the future, (iii) payments under any Preferred Securities
Guarantee, and (iv) purchases of Common Stock related to the issuance of Common
Stock under any benefit plans of the Company for its directors, officers or
employees) if at such time (1) there shall have occurred any event of which the
Company has actual knowledge that (A) with the giving of notice or the lapse of
time or both, would constitute an Event of Default hereunder and (B) in respect
of which the Company shall not have taken reasonable steps to cure, (2) the
Guarantor shall be in default with respect to its payment of any obligations
under the related Preferred Securities Guarantee or (3) the Company shall have
given notice of its election to begin an Extension Period as provided herein
with respect to the Securities of such series and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
Section 10.12. Payment of Expenses of Each RenaissanceRe Trust.
The Company covenants for the benefit of the Holders of each series of
Securities to pay or cause to be paid all of the obligations, costs and expenses
of each RenaissanceRe Trust (other than payments in respect of Trust Securities)
in accordance with the provisions of its Trust Agreement and to pay the taxes of
such RenaissanceRe Trust in accordance with the provisions
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of its Trust Agreement in order to permit such RenaissanceRe Trust to make
distributions on and redemptions of its Preferred Securities in accordance with
such Trust Agreement.
Section 10.13. Ownership of Common Securities.
The Company covenants, as to each series of Securities issued to a
RenaissanceRe Trust in connection with the issuance of Preferred Securities and
Common Securities by that RenaissanceRe Trust, (a) to maintain directly or
indirectly 100% ownership of the Common Securities of such RenaissanceRe Trust;
provided, however, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (b) not to
voluntarily dissolve, wind-up or liquidate such RenaissanceRe Trust, except in
connection with (i) a distribution of the Securities of such series to the
holders of Preferred Securities and Common Securities in liquidation of such
RenaissanceRe Trust, (ii) the redemption of all of the Preferred Securities and
Common Securities of such RenaissanceRe Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Trust Agreement of
such RenaissanceRe Trust and (c) to use its reasonable efforts, consistent with
the terms and provisions of the related Trust Agreement, to cause such
RenaissanceRe Trust to remain classified as a grantor trust and not an
association taxable as a corporation for United States federal income tax
purposes.
Section 10.14. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on any Outstanding
Original Issue Discount Securities as of the end of such year and (ii) such
other specific information relating to such original issue discount as may then
be relevant under the Code, as amended from time to time.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series as permitted or required by the
terms of such Securities shall be made in accordance with the terms of such
Securities and (except as otherwise provided herein or pursuant hereto) this
Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of (a) less than all of the Securities of any series or
(b) all of the Securities of any series, with the same issue date, interest rate
or formula, Stated Maturity and other terms, 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 of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. If the Securities of a series are held
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by a RenaissanceRe Trust, the Company shall also deliver a copy of such notice
to the Property Trustee of such RenaissanceRe Trust.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms 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 portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
related Series Authorization of any series, if any Security selected for partial
redemption is converted into other securities of the Company or exchanged for
securities of another issuer in part before termination of the conversion or
exchange right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Securities which have been converted or
exchanged during a selection of Securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, in the case of a Registered Security, together with any accrued
interest and Additional Amounts pertaining thereto, and that unless the
Company shall default in the payment of the Redemption Price and other
amounts then due, interest thereon, if applicable, shall cease to accrue on
and after said date,
(6) the place or places where such Securities, together (in the
case of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing on or after the Redemption Date, are to be surrendered for payment
of the Redemption Price and any accrued interest and Additional Amounts
pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and no
Registered Securities of such series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 3.5 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made,
(10) in the case of Securities of any series that are convertible
into Common Stock of the Company or exchangeable for other securities, the
conversion or exchange price or rate, the date or dates on which the right
to convert or exchange the principal of the Securities of such series to be
redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange, and
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(11) the CUSIP number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the expense of the
Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption, with the Trustee
or with a Paying Agent (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 in
the applicable Currency sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date, unless otherwise
specified pursuant to Section 3.1 or in the Securities of such series) any
accrued interest (including any Additional Interest) on and Additional Amounts
with respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, become due and payable on the Redemption Date, at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any accrued
interest or Additional Amounts) such Securities shall cease to bear interest and
the Coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all Coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with any accrued interest and Additional Amounts to the Redemption Date;
provided, however, that, except as otherwise provided in or pursuant to the
related Series Authorization and the Coupons, installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of Coupons for such interest (at an
Office or Agency located outside the United States except as otherwise provided
in Section 10.2), and provided, further, that, except as otherwise specified in
or pursuant to the related Series Authorization, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 3.7 and installments of interest on Registered Securities for which the
Redemption Date is after a Regular Record Date and on or before the following
Interest Payment Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the Regular Record Dates therefor according to their terms and the provisions of
Section 3.7.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
Section 11.8. Right of Redemption of Securities Issued to a RenaissanceRe Trust.
In the case of the Securities of a series issued to a RenaissanceRe
Trust, except as otherwise specified as contemplated by Section 3.1, if a
Special Event in respect of such RenaissanceRe Trust shall occur and be
continuing, the Company may, at its option, redeem the Securities of such series
within 90 days of the occurrence of such Special Event, in whole but not in
part, subject to the provisions of this Section 11.8 and the other provisions of
this Article 11. Unless otherwise specified in or pursuant to this Indenture or
the Securities of such series, the redemption price for any Security so redeemed
pursuant to this Section 11.8 shall be equal to 100% of the principal amount of
such Securities then Outstanding plus accrued and unpaid interest, including any
Additional Interest, to the date fixed for redemption.
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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 a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture or the related Series Authorization.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any series to be made pursuant to
the terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the written request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
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Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE XIII.
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a written directive that
such Securities be cancelled. Notwithstanding anything to the contrary contained
in this Section 13.1, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
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ARTICLE XIV.
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the related Series Authorization, any amount in respect of any
Security denominated in a Currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be obtained for
such amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE XV.
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York, or, if Securities of such series have been issued in whole or
in part as Bearer Securities, in London or in such place outside the United
States as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.6, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 15.1, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have mailed notice of or made the first publication of the notice
of such meeting within 21 days after receipt of such request (whichever
shall be required
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pursuant to Section 1.6) or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may
be, may determine the time and the place in the Borough of Manhattan, The
City of New York, or, if Securities of such series are to be issued as
Bearer Securities, in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in clause (1) of this
Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
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Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 1.4 and the appointment of any proxy
shall be proved in the manner specified in Section 1.4 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.4 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.4 or other
proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
15.2(2), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further
notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders
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of Securities of such series or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports of all votes cast at the meeting. A
record of the proceedings of each meeting of Holders of Securities of any series
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 15.2 and, if applicable, Section
15.4. Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and the Guarantor, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE XVI.
SUBORDINATION OF SECURITIES
Section 16.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities issued
hereunder and under any indenture supplemental hereto or pursuant to a Board
Resolution and Officers' Certificate ("Additional Provisions") by such Holder's
acceptance thereof likewise covenants and agrees, that all Securities shall be
issued subject to the provisions of this Article 16; and each Holder of a
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, any premium and
interest (including any Additional Interest) on and any Additional Amounts with
respect to all Securities of each series issued hereunder and under any
Additional Provisions shall, to the extent and in the manner hereinafter set
forth and subject to the provisions of the related Series Authorization, be
subordinate in right of payment to the prior payment in full of all Company
Senior Indebtedness with respect to such series, whether outstanding at the date
of this Indenture or thereafter incurred.
No provision of this Article 16 shall prevent the occurrence of any
default or Event of Default hereunder.
All references in this Article 16 to Holders of Securities shall be
deemed to include Holders of Coupons.
Section 16.2. Default on Company Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other amount due on any
Company Senior Indebtedness with respect to the Securities of any series, or in
the event that the maturity of any Company Senior Indebtedness with respect to
the Securities of any series has been accelerated
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because of a default, then, in either case, no payment shall be made by the
Company with respect to the principal (including redemption and sinking fund
payments) of, any premium or interest (including any Additional Interest) on, or
any Additional Amounts with respect to, the Securities of such series or to
acquire such Securities (other than pursuant to the conversion of such
Securities).
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 16.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such Company
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Company Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of such Company Senior Indebtedness (or
their representative or representatives or a trustee) notify the Trustee in
writing within 90 days of such payment of the amounts then due and owing on such
Company Senior Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of such Company Senior Indebtedness.
Section 16.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any total or partial liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors or marshaling of assets
of the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other similar proceedings relating to the Company or its assets,
all amounts due upon all Company Senior Indebtedness with respect to the
Securities of any series shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Company on account of the principal of, premium or interest (including
any Additional Interest) on, or Additional Amounts with respect to, the
Securities of such series; and in any such case, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders or the Trustee (on behalf of
Holders with respect to the principal of, premium or interest on or Additional
Amounts with respect to, the Securities of such Series) would be entitled to
receive from the Company, except for the provisions of this Article 16, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by them or it,
directly to the holders of such Company Senior Indebtedness (pro rata to such
holders having equal seniority on the basis of the respective amounts of such
Company Senior Indebtedness held by such holders, as calculated by the Company)
or their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Company Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay such Company Senior Indebtedness in full, in money
or money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of such Company Senior Indebtedness, before any payment or
distribution is made to the Holders of the Securities of such series or to the
Trustee.
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In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing shall be received by the
Trustee before all such Company Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Company Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Company Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all such Company
Senior Indebtedness remaining unpaid to the extent necessary to pay such Company
Senior Indebtedness in full in money in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the benefit of the
holders of such Company Senior Indebtedness.
For purposes of this Article 16, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 16 with respect
to the Securities of the relevant series to the payment of all Company Senior
Indebtedness with respect to the Securities of such series that may at the time
be outstanding, provided that (i) such Company Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Company Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation or amalgamation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance, transfer or lease of its
property as an entirety, or substantially as an entirety, to another Person upon
the terms and conditions provided for in Sections 8.1 and 8.2 of this Indenture
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 16.3 if such other Person shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Sections 8.1 and 8.2 of this Indenture.
Section 16.4. Subrogation.
Subject to the payment in full of all Company Senior Indebtedness with
respect to the Securities of any series, the rights of the Holders of the
Securities of such series shall be subrogated to the rights of the holders of
such Company Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to such Company Senior
Indebtedness until 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 paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Company Senior
Indebtedness of any cash, property or securities to which the Holders or the
Trustee would be entitled except for the provisions of this Article 16, and no
payment over pursuant to the provisions of this Article 16 to or for the benefit
of the holders of such Company Senior Indebtedness by Holders of the Securities
of such series or the Trustee, shall, as between the Company, its creditors
other than holders of such Company Senior Indebtedness, and the Holders of the
Securities of such series, be deemed to be a payment by the
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Company to or on account of such Company Senior Indebtedness. It is understood
that the provisions of this Article 16 are and are intended solely for the
purposes of defining the relative rights of the Holders of the Securities of
each series, on the one hand, and the holders of the Company Senior Indebtedness
with respect to the Securities of such series on the other hand.
Nothing contained in this Article 16 or elsewhere in this Indenture,
any Additional Provisions or in the Securities of any series is intended to or
shall impair, as between the Company, its creditors other than the holders of
Company Senior Indebtedness with respect to the Securities of such series, and
the Holders of the Securities of such series, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities of
such series the principal of, any premium and interest (including any Additional
Interest) on, and any Additional Amounts with respect to, the Securities of such
series as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities of such series and creditors of the Company, other
than the holders of such Company Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or the Holder of any Security of such series from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article 16 of the
holders of such Company Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article 16, the Trustee, subject to the provisions of Article 6 of this
Indenture, and the Holders shall be entitled to conclusively rely upon any order
or decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities of any series, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of Company
Senior Indebtedness with respect to the Securities of such series and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 16.
Section 16.5. Trustee to Effectuate Subordination.
Each Holder of Securities by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article 16 and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
Section 16.6. Notice by the Company.
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 of monies to or by the Trustee in respect of the Securities of
any series pursuant to the provisions of this Article 16. Notwithstanding the
provisions of this Article 16 or any other provision of this Indenture or any
Additional Provisions, the Trustee shall not be charged with knowledge of the
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existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 16, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Company Senior Indebtedness with respect to the Securities of such
series or from any trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Article 6 of this Indenture,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 16.6 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, 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), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes 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.
The Trustee, subject to the provisions of Article 6 of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Company Senior Indebtedness
with respect to the Securities of any series (or a trustee on behalf of such
holder), to establish that such notice has been given by a holder of such
Company Senior Indebtedness or a trustee on behalf of any such holder or
holders. 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 such
Company Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 16, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Company Senior Indebtedness 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 16, 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.
Upon any payment or distribution of assets of the Company referred to
in this Article 16, the Trustee and the Holders shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, 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 of any series, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Company Senior Indebtedness with respect to the Securities of such series 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 16.
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Section 16.7. Rights of the Trustee; Holders of Company Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 16 in respect of any Company Senior
Indebtedness with respect to the Securities of any series at any time held by
it, to the same extent as any other holder of such Company Senior Indebtedness,
and nothing in this Indenture or any Additional Provisions shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Company Senior Indebtedness with
respect to the Securities of any series, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth
in this Article 16, and no implied covenants or obligations with respect to the
holders of such Company Senior Indebtedness shall be read into this Indenture or
any Additional Provisions against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of such Company Senior Indebtedness
and, subject to the provisions of Article 6 of this Indenture, the Trustee shall
not be liable to any holder of such Company Senior Indebtedness if it shall pay
over or deliver to Holders of the Securities of such series, the Company or any
other Person money or assets to which any holder of such Company Senior
Indebtedness shall be entitled by virtue of this Article 16 or otherwise.
Nothing in this Article 16 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.6.
Section 16.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Company Senior
Indebtedness 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 otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Company Senior Indebtedness with respect to the Securities of any
series may, at any time and from time to time, without the consent of or notice
to the Trustee or the Holders of Securities of such series, without incurring
responsibility to such Holders and without impairing or releasing the
subordination provided in this Article 16 or the obligations hereunder of the
Holders of the Securities of such series to the holders of such Company Senior
Indebtedness, 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, such
Company Senior Indebtedness, or otherwise amend or supplement in any manner such
Company Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Company Senior Indebtedness is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing such Company Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of such Company Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Company and any
other Person.
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Section 16.9. Application by Trustee of Assets Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with this Indenture, including without limitation pursuant to Article
4 hereof, shall be for the sole benefit of the Holders of the Securities and, to
the extent allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article 16. Otherwise, any deposit of assets
with the Trustee or any Paying Agent (whether or not in trust) for the payment
of any Securities shall be subject to the provisions of Sections 16.1, 16.2, and
16.3; provided that, if prior to two Business Days preceding the date on which
by the terms of this Indenture any such assets may become distributable for any
purpose (including, without limitation, the payment of any amount due on any
Security) the Trustee or such Paying Agent shall not have received with respect
to such assets the written notice provided for in Section 16.6, then the Trustee
or such Paying Agent shall have full power and authority to receive such assets
and to apply the same to the purpose for which they were received, and shall not
be affected by any notice to the contrary which may be received by it on or
after such date.
ARTICLE XVII.
[RESERVED]
Section 17.1. [RESERVED].
Section 17.2. Net Payments.
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 any Coupon 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.
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Section 17.3. [RESERVED]
Section 17.4. [RESERVED.]
Section 17.5. [RESERVED.]
Section 17.6. [RESERVED.]
ARTICLE XVIII.
[RESERVED.]
Section 18.1. [RESERVED.]
Section 18.2. [RESERVED.]
Section 18.3. [RESERVED.]
Section 18.4. [RESERVED.]
Section 18.5. [RESERVED.]
Section 18.6. [RESERVED.]
Section 18.7. [RESERVED.]
Section 18.8. [RESERVED.]
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
Attest: RENAISSANCERE HOLDINGS LTD.
/s/ Martin J. Merritt By: /s/ John M. Lummis
- ---------------------------------- -------------------------------
Martin J. Merritt John M. Lummis
Senior Vice President and Executive Vice President and
Controller Chief Financial Officer
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[SEAL]
Attest: DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By: /s/ Yana Kalachikova By: /s/ Dorothy Robinson
------------------------------ -------------------------------
Yana Kalachikova Dorothy Robinson
Associate Vice President
[SEAL]
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