Exhibit 4.2
MARKEL CORPORATION
Issuer
TO
THE BANK OF NEW YORK
MELLON
(as successor to The Chase Manhattan
Bank)
Trustee
Fifth Supplemental
Indenture
Dated as of September 22,
2009
$350,000,000
7.125% Senior Notes
Due 2019
TABLE OF CONTENTS*
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ARTICLE I 7.125%
SENIOR NOTES DUE 2019
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SECTION 101.
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ESTABLISHMENT
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1
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SECTION 102.
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DEFINITIONS
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2
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SECTION 103.
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PAYMENT OF
PRINCIPAL AND INTEREST
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4
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SECTION 104.
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DENOMINATIONS
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5
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SECTION 105.
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GLOBAL
SECURITIES
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5
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SECTION 106.
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REDEMPTION
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6
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SECTION 107.
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SINKING
FUND
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6
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SECTION 108.
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ADDITIONAL
INTEREST
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6
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SECTION 109.
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PAYING
AGENT
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6
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SECTION 110.
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LIMITATION ON
LIENS
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6
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SECTION 111.
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EVENTS OF
DEFAULT
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7
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SECTION 112.
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DEFEASANCE
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9
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ARTICLE II MISCELLANEOUS
PROVISIONS
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SECTION 201.
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RECITALS BY
COMPANY
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9
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SECTION 202.
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INCORPORATION
OF ORIGINAL INDENTURE
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9
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SECTION 203.
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EXECUTED IN
COUNTERPARTS
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10
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SECTION 204.
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ASSIGNMENT
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10
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SECTION 205.
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THE
TRUSTEE
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10
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*
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This Table of
Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and
provisions.
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i
THIS FIFTH SUPPLEMENTAL INDENTURE is
made as of September 22, 2009, by and between MARKEL
CORPORATION, a Virginia corporation, having its principal office at
4521 Highwoods Parkway, Glen Allen, Virginia 23060 (the
“Company”), and THE BANK OF NEW YORK MELLON (as
successor to THE CHASE MANHATTAN BANK), a New York banking
corporation, as Trustee (herein called the
“Trustee”).
W I T N E S S E T H:
WHEREAS, the Company has heretofore
entered into a Senior Indenture, dated as of June 5, 2001 (the
“Original Indenture”), as heretofore supplemented and
amended, with the Trustee;
WHEREAS, the Original Indenture is
incorporated herein by this reference and the Original Indenture,
as heretofore supplemented and amended and as further supplemented
by this Fifth Supplemental Indenture, is herein called the
“Indenture”;
WHEREAS, under the Original
Indenture, a new series of Securities may at any time be
established in accordance with the provisions of the Original
Indenture and the terms of such series may be described by a
supplemental indenture executed by the Company and the
Trustee;
WHEREAS, the Company proposes to
create under the Indenture a series of Securities;
WHEREAS, additional Securities of
other series hereafter established, except as may be limited in the
Original Indenture as at the time supplemented and modified, may be
issued from time to time pursuant to the Indenture as at the time
supplemented and modified; and
WHEREAS, all conditions necessary to
authorize the execution and delivery of this Fifth Supplemental
Indenture and to make it a valid and binding obligation of the
Company have been done or performed.
NOW, THEREFORE, in consideration of
the agreements and obligations set forth herein and for other good
and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
7.125% SENIOR NOTES DUE
2019
SECTION 101. Establishment .
There is hereby established a new series of Securities to be issued
under the Indenture, to be designated as the Company’s 7.125%
Senior Notes due 2019 (the “7.125% Senior
Notes”).
There are to be authenticated and
delivered $350,000,000 principal amount of 7.125% Senior Notes, and
such principal amount of the 7.125% Senior Notes may be increased
from time to time pursuant to Section 301 of the Indenture.
All 7.125% Senior Notes need not be issued at the same time and
such series may be reopened at any time, without the consent of any
Holder, for issuances of additional 7.125% Senior Notes. Any such
additional 7.125% Senior Notes will have the same interest rate,
maturity and other terms as those initially issued. Further 7.125%
Senior Notes may also be authenticated and delivered as provided by
Sections 304, 305, 306 or 905 of the Original Indenture.
The 7.125% Senior Notes shall be
issued in definitive fully registered form without coupons, in
substantially the form set out in Exhibit A hereto. The entire
initially issued principal amount of the 7.125% Senior Notes shall
initially be evidenced by one or more certificates issued to
Cede & Co., as nominee for The Depository Trust
Company.
The form of the Trustee’s
Certificate of Authentication for the 7.125% Senior Notes shall be
in substantially the form set forth in Exhibit B hereto.
Each 7.125% Senior Note shall be
dated the date of authentication thereof and shall bear interest
from the Original Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for.
SECTION 102. Definitions .
The following defined terms used herein shall, unless the context
otherwise requires, have the meanings specified below. Capitalized
terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
“Business Day” means a
day other than (i) a Saturday or a Sunday, (ii) a day on
which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on
which the Corporate Trust Office is closed for business.
“Comparable Treasury
Issue” means the United States Treasury security selected by
a Reference Treasury Dealer as having an actual or interpolated
maturity comparable to the remaining term of the 7.125% Senior
Notes called for redemption, that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of 7.125% Senior Notes called for
redemption.
“Comparable Treasury
Price” means, with respect to any Redemption Date, the
average, as determined by the Company, of the Reference Treasury
Dealer Quotations for that Redemption Date.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered in the
Borough of Manhattan, The City of New York, which office at the
date of original execution of this Indenture is located at 101
Barclay Street 8 W, New York, New York 10286.
“Interest Payment Dates”
means March 30 and September 30 of each year, commencing
on March 30, 2010.
“Lien” means any
mortgage, lien, pledge, security interest or other encumbrance of
any kind.
2
“Material Subsidiary”
means a Subsidiary of the Company whose total assets (as determined
in accordance with GAAP) represent at least 20% of the total assets
of the Company on a consolidated basis.
“Original Issue Date”
means September 22, 2009.
“Outstanding”, when used
with respect to the 7.125% Senior Notes, means, as of the date of
determination, all 7.125% Senior Notes, theretofore authenticated
and delivered under the Indenture, except:
(i) 7.125% Senior Notes theretofore
canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) 7.125% Senior Notes for whose
payment at Maturity the necessary amount of money or money’s
worth has been theretofore deposited (other than pursuant to
Section 402 of the Original Indenture) with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such 7.125% Senior
Notes.
(iii) 7.125% Senior Notes with
respect to which the Company has effected defeasance, or covenant
defeasance has been effected, pursuant to Section 402 of the
Original Indenture; and
(iv) 7.125% Senior Notes that have
been paid pursuant to Section 306 of the Original Indenture or
in exchange for or in lieu of which other 7.125% Senior Notes have
been authenticated and delivered pursuant to the Indenture, other
than any such 7.125% Senior Notes in respect of which there shall
have been presented to the Trustee proof satisfactory to it that
such 7.125% Senior Notes are held by a bona fide purchaser in whose
hands such 7.125% Senior Notes are valid obligations of the
Company; provided, however, that in determining whether the Holders
of the requisite principal amount of Outstanding 7.125% Senior
Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of
Holders of 7.125% Senior Notes for quorum purposes, 7.125% Senior
Notes owned by the Company or any other obligor upon the 7.125%
Senior Notes or any Affiliate of the Company or such other obligor
shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making any
such determination or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only 7.125%
Senior Notes which a Responsible Officer of the Trustee knows to be
so owned shall be so disregarded. 7.125% Senior Notes 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 7.125% Senior Notes and (B) that the pledgee is not
the Company or any other obligor upon the 7.125% Senior Notes or an
Affiliate of the Company or such other obligor.
“Reference Treasury
Dealer” means Wells Fargo Securities, LLC and Barclays
Capital Inc. and one other U.S. Government securities dealer
selected by the Company, and each of their respective
successors.
3
“Reference Treasury Dealer
Quotations” means, on any redemption date, the average, as
determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by each
Reference Treasury Dealer at 3:30 p.m., New York City time, on the
third business day preceding that Redemption Date.
“Regular Record Date”
means, with respect to each Interest Payment Date, the close of
business on the Business Day preceding such Interest Payment Date;
provided, that with respect to 7.125% Senior Notes that are not
represented by one or more Global Securities, the Regular Record
Date shall be the close of business on the 15th calendar day
(whether or not a Business Day) preceding such Interest Payment
Date.
“Remaining Scheduled
Payments” means the remaining scheduled payments of principal
of and interest on the 7.125% Senior Notes called for redemption
that would be due after the related Redemption Date but for that
redemption. If that Redemption Date is not an interest payment date
with respect to the 7.125% Senior Notes called for redemption, the
amount of the next succeeding scheduled interest payment on such
7.125% Senior Notes will be reduced by the amount of interest
accrued to such Redemption Date.
“Stated Maturity” means
September 30, 2019.
“Treasury Rate” means,
with respect to any Redemption Date, the rate per year equal to the
semi-annual equivalent yield to maturity (computed as of the third
business day immediately preceding that Redemption Date) of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for that Redemption
Date.
SECTION 103. Payment of
Principal and Interest . The principal of the 7.125% Senior
Notes shall be due at the Stated Maturity. The unpaid principal
amount of the 7.125% Senior Notes shall bear interest at the rate
of 7.125% per annum until paid or duly provided for, such
interest to accrue from the Original Issue Date or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for. Interest shall be paid semiannually in arrears
on each Interest Payment Date to the Person in whose name the
7.125% Senior Notes are registered on the Regular Record Date for
such Interest Payment Date; provided that interest payable at the
Stated Maturity of principal as provided herein will be paid to the
Person to whom principal is payable. Any such interest that is not
so punctually paid or duly provided for will forthwith cease to be
payable to the Holders on such Regular Record Date and may either
be paid to the Person or Persons in whose name the 7.125% Senior
Notes are registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the
Trustee (in accordance with Section 307 of the Original
Indenture), notice whereof shall be given to Holders of the 7.125%
Senior Notes not less than ten (10) days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if
any, on which the 7.125% Senior Notes may be listed, and upon such
notice as may be required by any such exchange, all as more fully
provided in the Original Indenture.
4
Payments of interest on the 7.125%
Senior Notes will include interest accrued to but excluding the
respective Interest Payment Dates. Interest payments for the 7.125%
Senior Notes shall be computed and paid on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which
interest is payable on the 7.125% Senior Notes is not a Business
Day, then payment of the interest payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or payment in respect of any such delay), in each case
with the same force and effect as if made on the date the payment
was originally payable.
Payment of the principal and
interest on the 7.125% Senior Notes shall be made at the office of
the Paying Agent in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts, with any such payment that is due at the
Stated Maturity of any 7.125% Senior Notes being made upon
surrender of such 7.125% Senior Notes to the Paying Agent. Payments
of interest (including interest on any Interest Payment Date) will
be made, subject to such surrender where applicable, at the option
of the Company, (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer at such place and
to such account at a banking institution in the United States as
may be designated in writing to the Trustee at least sixteen
(16) days prior to the date for payment by the Person entitled
thereto. In the event that any date on which principal and interest
is payable on the 7.125% Senior Notes is not a Business Day, then
payment of the principal and interest payable on such date will be
made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay), in each case
with the same force and effect as if made on the date the payment
was originally payable.
SECTION 104.
Denominations . The 7.125% Senior Notes may be issued in
denominations of $1,000, or any integral multiple
thereof.
SECTION 105. Global
Securities . The 7.125% Senior Notes will be issued initially
in the form of one or more Global Securities registered in the name
of the Depositary (which shall be The Depository Trust Company) or
its nominee. Except under the limited circumstances described
below, 7.125% Senior Notes represented by such Global Securities
will not be exchangeable for, and will not otherwise be issuable
as, 7.125% Senior Notes in definitive form. The Global Securities
described above may not be transferred except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or to a
successor Depositary or its nominee.
Owners of beneficial interests in
such a Global Security will not be considered the Holders thereof
for any purpose under the Indenture, and no Global Security
representing a 7.125% Senior Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be
registered in the name of the Depositary or its nominee or to a
successor Depositary or its nominee or except as described below.
The rights of Holders of such Global Security shall be exercised
only through the Depositary.
A Global Security shall be
exchangeable for 7.125% Senior Notes registered in the names of
persons other than the Depositary or its nominee only if
(i) the Depositary notifies the Company that it is unwilling
or unable to continue as a Depositary for such Global Security
and
5
no successor Depositary shall have been
appointed by the Company within 90 days of receipt by the Company
of such notification, or if at any time the Depositary ceases to be
a clearing agency registered under the Exchange Act at a time when
the Depositary is required to be so registered to act as such
Depositary and no successor Depositary shall have been appointed by
the Company within 90 days after it becomes aware of such
cessation, or (ii) the Company in its sole discretion
determines that such Global Security shall be so exchangeable. Any
Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for 7.125% Senior Notes registered
in such names as the Depositary shall direct.
SECTION 106. Redemption
. The 7.125% Senior Notes are redeemable, as a whole or in part, at
the Company’s option, at any time or from time to time, upon
notice mailed to the registered address of each Holder at least 30
days but not more than 60 days prior to the Redemption Date. The
Redemption Price will be equal to the greater of (1) 100% of
the principal amount of the 7.125% Senior Notes to be redeemed and
(2) the sum of the present values of the Remaining Scheduled
Payments on such 7.125% Senior Notes discounted to the Redemption
Date, on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months), at a rate equal to the sum of the applicable
Treasury Rate plus 50 basis points. Accrued interest will be paid
to, but excluding, the Redemption Date.
On and after a Redemption Date,
interest will cease to accrue on the 7.125% Senior Notes called for
redemption (unless the Company defaults in the payment of the
Redemption Price and accrued interest). On or before a Redemption
Date, the Company shall deposit with the Paying Agent or the
Trustee money sufficient to pay the Redemption Price of and
accru