EXHIBIT 4.5(a)
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is executed
as of this 7th day of June, 2005, by Standard Management Corporation, an Indiana
corporation ("Standard") and Deutsche Bank Trust Company Americas (successor in
interest to Bankers Trust Company), as Trustee under the indenture referenced
below (the "Trustee").
WHEREAS, Standard, as issuer, has heretofore entered into an Indenture,
dated as of August 9, 2001 (the "Indenture"), with the Trustee pursuant to which
the Trustee acts as trustee for the Holders of Standard's 10.25% Junior
Subordinated Debentures due 2031 (the "Debentures");
WHEREAS, SMAN Capital Trust I, a Delaware business trust and a
subsidiary of Standard (the "Trust"), is the Holder of all outstanding
Debentures;
WHEREAS, Section 9.2 of the Indenture provides that so long as the
Trust is the Holder of Debentures, Standard and the Trustee may amend or
supplement the Indenture with the consent of the Holders of a majority of the
aggregate liquidation amount of the Preferred Securities issued by the Trust,
subject to certain conditions contained therein;
WHEREAS, pursuant to the Consent Solicitation Statement dated April 8,
2005 (the "Statement"), Standard commenced a solicitation to obtain the consent
of not less than a majority of the aggregate liquidation amount of the Preferred
Securities of the Trust (the "Consent Solicitation") to the proposed amendment
(the "Proposed Amendment") to the Indenture;
WHEREAS, the Holders of at least a majority of the aggregate
liquidation amount of the Preferred Securities outstanding as of April 4, 2005
have consented to the Proposed Amendment as described in this Supplemental
Indenture; and
WHEREAS, pursuant to Section 9.2 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
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 agree as follows.
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Amendments to the Indenture. The Indenture is hereby amended by
deleting Article VIII in its entirety and replacing it with the following:
"ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person,
and no Person shall consolidate with or merge into the Company, unless:
(a) if the Company shall consolidate with or merge into another Person,
the entity formed by such consolidation or into which the Company is merged
shall be an entity organized and existing under the laws of the United States of
America or any state thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any), and interest (including any Additional
Interest) on all the Securities of every series and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation or merger and
any such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with and, in the case of a transaction subject to this Section 8.1, an Officer's
Certificate or Opinion of Counsel to the effect that the surviving, resulting or
successor entity is legally bound by the Indenture and the Securities; and the
Trustee, subject to Section 6.1, may rely upon such Officers' Certificates and
Opinions of Counsel as conclusive evidence that such transaction complies with
this Section 8.1.
Notwithstanding anything herein to the contrary, upon the conveyance,
transfer or lease of the Company's properties and assets substantially as an
entirety to any Person, the Company shall have the right, but not the
obligation, to have its obligations under this Indenture assumed by the Person
that acquires by conveyance or transfer, or that leases, the properties and
assets of the Company substantially as an entirety, so long as the conditions of
Section 8.1(a), (b) and (c) set forth above have been satisfied with respect to
such assumption of the Company's obligations hereunder.
Section 8.2. Successor Company Substituted.
(a) Upon any consolidation or merger by the Company with or into any
other Person or the assumption, at the Company's sole option, of the Company's
obligations following any conveyance, transfer or lease by the Company of its
properties and assets substantially as an entirety in accordance with Section
8.1, the successor entity formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities.
(b) Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture.
(c) In case of any such consolidation or merger, such changes in
phraseology and form may be made in the Securities thereafter to be issued as
may be appropriate."
3. Related Definitions and References. Pursuant to the Proposed
Amendments, all definitions used exclusively in, and all references to, the
deleted sections of the Indenture set forth in Section 2 above are also deleted
in their entirety, unless otherwise specified.
4. Receipt by Trustee. In accordance with Sections 9.2 and 9.3 of the
Indenture, the Trustee acknowledges that it has received (i) a copy of the
resolutions of the Company's Board of Directors authorizing the execution of
this Supplemental Indenture, (ii) satisfactory evidence of the consent of
holders of a majority of the aggregate liquidation amount of the Preferred
Securities issued by the Trust to the execution of this Supplemental Indenture
and (iii) an Officers' Certificate and Opinion of Counsel stating that the
execution of this Supplemental Indenture is permitted by the Indenture and all
conditions precedent and covenants relating to the execution of this
Supplemental Indenture have been satisfied.
5. Parties. Nothing expressed or mentioned herein is intended or shall
be construed to give any Person other than the Holders and the Trustee, any
legal or equitable right, remedy or claim under or in respect of this
Supplemental Indenture or the Indenture or any provision herein or therein
contained.
6. Governing Law. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed in the State of New York.
7. Separability. Each provision of this Supplemental Indenture shall be
considered separable and if for any reason any provision which is not essential
to the effectuation of the basic purpose of this Supplemental Indenture 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.
8. Condition to Operative Effect. Pursuant to Section 9.4 of the
Indenture, this Supplemental Indenture shall become effective upon execution
hereof by the Trustee and the Company.
9. Multiple Counterparts. The parties may sign multiple counterparts of
this Supplemental Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent one and the same agreement.
10. Effect of Headings. The headings of the sections in this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
11. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity, legality or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company.
12. Ratification of Indenture; Supplemental Indenture Part of
Indenture. Except as expressly supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
STANDARD MANAGEMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President