<PAGE>
As filed with the Securities and Exchange Commission on August 12, 1999
Registration No. 333-78841
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
ACE LIMITED
(Exact name of registrant as specified in its charter)
Cayman Islands 98-0091805
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization) CT Corporation System
The ACE Building 1633 Broadway
30 Woodbourne Avenue New York, New York 10019
Hamilton, HM 08, Bermuda (212) 664-1666
(441) 295-5200 (Name, address, including zip code, and
(Address, including zip code, and telephone number,
telephone number, including area code, of agent for
including area code, of Registrant's service)
principal executive offices)
----------------
ACE INA HOLDINGS INC.
(Exact name of registrant as specified in its charter)
Delaware 58-2457246
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization) Richard T. Gieryn, Jr.
c/o ACE USA, Inc. ACE USA, Inc.
Six Concourse Parkway Six Concourse Parkway, Suite 2500
Suite 2500 Atlanta, Georgia 30328
Atlanta, Georgia 30328 (770) 393-9955
(770) 393-9955 (Name, address, including zip code, and
(Address, including zip code, and telephone number,
telephone number, including area code, of agent for
including area code, of Registrant's service)
principal executive offices)
----------------
ACE CAPITAL TRUST I
ACE CAPITAL TRUST II
ACE CAPITAL TRUST III
(Exact name of registrant as specified in its certificate of trust)
Delaware Each Applied For
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation of organization) Richard T. Gieryn, Jr.
c/o ACE USA, Inc. ACE USA, Inc.
Six Concourse Parkway Six Concourse Parkway, Suite 2500
Suite 2500 Atlanta, Georgia 30328
Atlanta, Georgia 30328 (770) 393-9955
(770) 393-9955 (Name, address, including zip code, and
(Address, including zip code, and telephone number,
telephone number, including area code, of agent for
including area code, of Registrant's service)
principal executive offices)
Copies to:
<TABLE>
<S> <C> <C>
Peter N. Mear Edward S. Best Norman D. Slonaker
General Counsel and Secretary Mayer, Brown & Platt Michael J. Schiavone
ACE Limited 190 South LaSalle Street Brown & Wood llp
The ACE Building Chicago, Illinois 60603 One World Trade Center
30 Woodbourne Avenue (312) 782-0600 New York, New York 10048
Hamilton, HM 08, Bermuda (212) 839-5300
(441) 295-5200
</TABLE>
----------------
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [_]
<PAGE>
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement on Form S-3 (File No. 333-
78841) of ACE Limited, ACE INA Holdings Inc., ACE Capital Trust I, ACE Capital
Trust II and ACE Capital Trust III (the "Registration Statement"), initially
filed with the Securities and Exchange Commission on May 20, 1999, is being
filed solely to include additional exhibits as part of the Registration
Statement.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities registered hereby, other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $1,112,000
Trustee's fees and expenses...................................... 50,000
Printing and engraving expenses.................................. 250,000
Rating agency fees............................................... 600,000
Accounting fees and expenses..................................... 150,000
Legal fees and expenses.......................................... 500,000
Blue Sky fees and expenses....................................... 10,000
Miscellaneous.................................................... 220,000
----------
Total........................................................ $2,900,000
==========
</TABLE>
Item 15. Indemnification of Officers and Directors.
ACE
Section 100 of ACE's Articles of Association, filed as Exhibit 4.2 to this
registration statement, contains provisions with respect to indemnification of
ACE's officers and directors. Such provision provides that ACE shall indemnify,
in accordance with and to the full extent now or hereafter permitted by law,
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, an
action by or in the right of ACE), by reason of his acting as a director,
officer, employee or agent of, or his acting in any other capacity for or on
behalf of, ACE, against any liability or expense actually and reasonably
incurred by such person in respect thereof. ACE may also advance the expenses
of defending any such act, suit or proceeding in accordance with and to the
full extent now or hereafter permitted by law. Such indemnification and
advancement of expenses are not exclusive of any other right to indemnification
or advancement of expenses provided by law or otherwise.
The Companies Law (Revised) of the Cayman Islands does not set out any
specific restrictions on the ability of a company to indemnify officers or
directors. However, the application of basic principles and certain
Commonwealth case law which is likely to be persuasive in the Cayman Islands
would indicate that indemnification is generally permissible except in the
event that there had been fraud or wilful default on the part of the officer or
director or reckless disregard of his duties and obligations to the company.
Directors and officers of ACE are also provided with indemnification against
certain liabilities pursuant to a directors and officers liability insurance
policy. Coverage is afforded for any loss that the insureds become legally
obligated to pay by reason of any claim or claims first made against the
insureds or any of them during the policy period from any wrongful acts that
are actually or allegedly caused, committed or attempted by the insureds prior
to the end of the policy period. Wrongful acts are defined as any actual or
alleged error, misstatement misleading statement or act, omission, neglect or
breach of duty by the insureds while acting in their individual or collective
capacities as directors or officers of ACE, or any other matter claimed against
them by reason of their being directors or officers of ACE. Certain of ACE's
directors are provided, by their employer, with indemnification against certain
liabilities incurred as directors of ACE.
Reference is made to the forms of Underwriting Agreement filed as Exhibits
1.1 though 1.3 of this registration statement. The Underwriting Agreements
provide, among other things, that the underwriters are obligated, under certain
circumstances, to indemnify directors, certain officers and controlling persons
of ACE against certain liabilities, including liabilities under the Securities
Act of 1933, as amended.
II-1
<PAGE>
ACE INA
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts of omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for payments of unlawful dividends or unlawful stock repurchases or
redemptions or (iv) for any transaction from which the director derived an
improper personal benefit. ACE INA's Certificate of Incorporation contains such
a provision.
Under Article VI of ACE INA's By-laws as currently in effect, as well as
under Section 10 of ACE INA's Certificate of Incorporation, each person who is
or was a director or officer of ACE INA, or who serves or served any other
enterprise or organization at the request of ACE INA, shall be indemnified by
ACE INA to the full extent permitted by the Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who, by reason of the fact that such
person is or was a director or officer of such corporation, is made (or
threatened to be made) a party to an action other than one brought by or on
behalf of the corporation, against reasonable expenses (including attorneys'
fees), judgments, fines and settlement payments, if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of such corporation and, in criminal actions, in addition, had
no reasonable cause to believe his conduct was unlawful. In the case of actions
on behalf of the corporation, indemnification may extend only to reasonable
expenses (including attorneys' fees) and only if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, provided that no such indemnification is
permitted in respect of any claim as to which such person is adjudged liable to
such corporation for negligence or misconduct in the performance of his duty to
the corporation unless and only to the extent that a court otherwise provides.
To the extent that such person has been successful in defending any action
(even one on behalf of the corporation), he is entitled to indemnification for
reasonable expenses (including attorneys' fees).
The indemnification provided for by the Delaware General Corporation Law is
not exclusive of any other rights of indemnification, and a corporation may
maintain insurance against liabilities for which indemnification is not
expressly provided by the Delaware General Corporation Law. ACE INA maintains a
liability insurance policy providing coverage for its directors and officers.
Reference is made to the forms of Underwriting Agreements filed as Exhibits
1.2 and 1.3 of this registration statement. The Underwriting Agreements
provide, among other things, that the underwriters are obligated, under certain
circumstances, to indemnify directors, certain officers and controlling persons
of ACE INA against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
Item 16. Exhibits and Financial Statement Schedules.
See Exhibit Index included herewith which is incorporated herein by
reference.
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
<TABLE>
<C> <S>
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
</TABLE>
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with the
Commission by the registrants pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
ACE's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrants hereby undertake that:
(a) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective; and
(b) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrants pursuant to the provisions set forth or described in Item 15 of
this registration statement, or otherwise, the registrants have been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant of expenses
incurred or paid by a director, officer or controlling person of such
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
them is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, ACE Limited
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Hamilton, Bermuda, on the 12th day of August, 1999.
ACE LIMITED
By: /s/ Christopher Z. Marshall
__________________________________
Christopher Z. Marshall
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 12th day of August, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Brian Duperreault Chairman, President and Chief Executive
___________________________________________ Officer; Director
Brian Duperreault
/s/ Christopher Z. Marshall Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Christopher Z. Marshall
/s/ Robert A. Blee Chief Accounting Officer (Principal
___________________________________________ Accounting Officer)
Robert A. Blee
* Vice Chairman; Director
___________________________________________
Donald Kramer
* Director
___________________________________________
Michael G. Atieh
* Director
___________________________________________
Bruce L. Crockett
* Director
___________________________________________
Jeffrey W. Greenberg
* Director
___________________________________________
Meryl D. Hartzband
* Director
___________________________________________
Robert M. Hernandez
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
* Director
___________________________________________
Peter Menikoff
* Director
___________________________________________
Thomas J. Neff
* Director
___________________________________________
Glen M. Renfrew
* Director
___________________________________________
Robert Ripp
* Director
___________________________________________
Walter A. Scott
* Director
___________________________________________
Dermot F. Smurfit
* Director
___________________________________________
Robert W. Staley
* Director
___________________________________________
Gary M. Stuart
* Director
___________________________________________
Sidney F. Wentz
</TABLE>
* By: /s/ Christopher Z. Marshall
---------------------------------
Attorney-in-Fact
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the undersigned as the duly
authorized representative of ACE Limited in the United States.
/s/ Brian Duperreault
_____________________________________
Brian Duperreault
August 12, 1999
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, ACE INA Holdings
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Hamilton, Bermuda, on the 12th day of August, 1999.
ACE INA HOLDINGS INC.
By: /s/ Christopher Z. Marshall
___________________________________
Christopher Z. Marshall
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 12th day of August, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Brian Duperreault President and Director
___________________________________________
Brian Duperreault
/s/ Dominic J. Frederico Vice President and Director
___________________________________________
Dominic J. Frederico
/s/ Christopher Z. Marshall Treasurer and Director (Principal Financial
___________________________________________ and Accounting Officer)
Christopher Z. Marshall
/s/ Peter N. Mear Secretary and Director
___________________________________________
</TABLE> Peter N. Mear
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of ACE
Capital Trust I, ACE Capital Trust II and ACE Capital Trust III certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Hamilton,
Bermuda, on the 12th day of August, 1999.
ACE CAPITAL TRUST I
BY: ACE INA Holdings Inc., as
Depositor
By: /s/ Christopher Z. Marshall
___________________________________
Christopher Z.
Marshall
Chief Financial
Officer
ACE CAPITAL TRUST II
BY: ACE INA Holdings Inc., as
Depositor
By: /s/ Christopher Z. Marshall
___________________________________
Christopher Z.
Marshall
Chief Financial
Officer
ACE CAPITAL TRUST III
BY: ACE INA Holdings Inc., as
Depositor
By: /s/ Christopher Z. Marshall
___________________________________
Christopher Z.
Marshall
Chief Financial
Officer
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit Page
Number Description Number
------- ----------- ----------
<C> <S> <C>
+1.1 Form of Underwriting Agreement relating to ordinary
shares, preferred shares, depositary shares, debt
securities and warrants of ACE Limited
*1.2 Form of Underwriting Agreement relating to debt
securities of ACE INA Holdings Inc., fully and
unconditionally guaranteed by ACE Limited
+1.3 Form of Underwriting Agreement relating to preferred
securities of ACE Capital Trust I, ACE Capital Trust II
and ACE Capital Trust III and preferred securities
guarantees of ACE Limited
+1.4 Form of Underwriting Agreement relating to stock purchase
contracts of ACE Limited
+1.5 Form of Underwriting Agreement relating to stock purchase
units of ACE Limited
4.1 Memorandum of Association of ACE Limited (incorporated by
reference to Exhibit 3.1 to the Registration Statement on
Form S-1 of ACE Limited (No. 33-57206))
4.2 Articles of Association of the ACE Limited (incorporated
by reference to Exhibit 3.2 to the Registration Statement
on Form S-1 of ACE Limited (No. 33-57206))
*4.3 Form of Senior Indenture between ACE Limited and The
First National Bank of Chicago
*4.4 Form of Subordinated Indenture between ACE Limited and
The First National Bank of Chicago
*4.5 Form of Senior Indenture among ACE INA Holdings Inc., ACE
Limited and The First National Bank of Chicago
*4.6 Form of Subordinated Indenture among ACE INA Holdings
Inc., ACE Limited and The First National Bank of Chicago
+4.7 Form of Standard Stock Warrant Provisions
+4.8 Form of Standard Debt Warrant Provisions
*4.9 Certificate of Trust of ACE Capital Trust I
*4.10 Certificate of Trust of ACE Capital Trust II
*4.11 Certificate of Trust of ACE Capital Trust III
*4.12 Trust Agreement of ACE Capital Trust I
*4.13 Trust Agreement of ACE Capital Trust II
*4.14 Trust Agreement of ACE Capital Trust III
*4.15 Form of Amended and Restated Trust Agreement of ACE
Capital Trust I
*4.16 Form of Amended and Restated Trust Agreement of ACE
Capital Trust II
*4.17 Form of Amended and Restated Trust Agreement of ACE
Capital Trust III
*4.18 Form of Preferred Securities Guarantee Agreement with
respect to the preferred securities issued by ACE Capital
Trust I
*4.19 Form of Preferred Securities Guarantee Agreement with
respect to the preferred securities issued by ACE Capital
Trust II
*4.20 Form of Preferred Securities Guarantee Agreement with
respect to the preferred securities issued by ACE Capital
Trust III
*5.1 Opinion of Maples and Calder as to the legality of the
ordinary shares and preferred shares
*5.2 Opinion of Mayer, Brown & Platt as to the legality of the
debt securities, stock warrants, debt warrants,
depositary shares, preferred securities, preferred
securities guarantees, stock purchase contracts and stock
purchase units
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Sequential
Exhibit Page
Number Description Number
------- ----------- ----------
<C> <S> <C>
*5.3A Opinion of Richards, Layton & Finger, P.A. relating to
ACE Capital Trust I
*5.3B Opinion of Richards, Layton & Finger, P.A. relating to
ACE Capital Trust II
Opinion of Richards, Layton & Finger, P.A. relating to
*5.3C ACE Capital Trust III
*12.1 Statement Re: Computation of Ratios
*23.2 Consent of Maples and Calder (included in Exhibit 5.1)
*23.3 Consent of Mayer, Brown & Platt (included in Exhibit 5.2)
*23.4 Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.3A, 5.3B and 5.3C)
**23.5 Consent of PricewaterhouseCoopers LLP
**23.6 Consent of PricewaterhouseCoopers LLP
**24.1 Powers of Attorney
**25.1 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as trustee for the ACE Limited
Senior Indenture
**25.2 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as trustee for the ACE Limited
Subordinated Indenture (included in Exhibit 25.1)
**25.3 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as trustee for the ACE INA senior
indenture
**25.4 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as trustee for the ACE INA
subordinated indenture (included in Exhibit 25.3)
**25.5 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as Property Trustee for the Amended
and Restated Trust Agreement of ACE Capital Trust I
**25.6 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as Property Trustee for the Amended
and Restated Trust Agreement of ACE Capital Trust II
**25.7 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as Property Trustee for the Amended
and Restated Trust Agreement of ACE Capital Trust III
**25.8 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as Preferred Securities Guarantee
Trustee under the Preferred Securities Guarantee
Agreement of ACE Limited for the benefit of the holders
of Preferred Securities of ACE Capital Trust I (included
in Exhibit 25.1)
**25.9 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as Preferred Securities Guarantee
Trustee under the Preferred Securities Guarantee
Agreement of ACE Limited for the benefit of the holders
of Preferred Securities of ACE Capital Trust II (included
in Exhibit 25.1)
**25.10 Statement of Eligibility of The First National Bank of
Chicago on Form T-1, as Preferred Securities Guarantee
Trustee under the Preferred Securities Guarantee
Agreement of ACE Limited for the benefit of the holders
of Preferred Securities of ACE Capital Trust III
(included in Exhibit 25.1)
99.1 Appointment of CT Corporation System as U.S. agent for
service of process (incorporated by reference to Exhibit
99.2 to the Registration Statement on Form S-3 of ACE
Limited (No. 333-49257))
</TABLE>
- --------
* Filed herewith.
** Previously filed.
+ To be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to this registration statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of securities.
<PAGE>
Exhibit 1.2
================================================================================
ACE INA HOLDINGS INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
Dated: , 1999
================================================================================
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1. Representations and Warranties................................................ 3
(a) Representations and Warranties by the Company and the Guarantor...................... 3
(1) Compliance with Registration Requirements..................................... 3
(2) Incorporated Documents........................................................ 4
(3) Independent Accountants....................................................... 4
(4) Financial Statements.......................................................... 4
(5) No Material Adverse Change in Business........................................ 5
(6) Good Standing of the Company.................................................. 5
(7) Good Standing of the Guarantor................................................ 6
(8) Good Standing of Corporate Subsidiaries....................................... 6
(9) Good Standing of Partnership Subsidiaries..................................... 6
(10) Capitalization................................................................ 7
(11) Authorization of this Underwriting Agreement and Terms Agreement.............. 7
(12) Authorization of Underwritten Securities...................................... 7
(13) Authorization of Guarantee.................................................... 7
(14) Authorization of the Indentures............................................... 8
(15) Descriptions of the Underwritten Securities, the Guarantee and the Indentures. 8
(16) Non-Taxation of Interest...................................................... 8
(17) Reserves...................................................................... 8
(18) Absence of Defaults and Conflicts............................................. 9
(19) Absence of Proceedings........................................................ 9
(20) Accuracy of Exhibits.......................................................... 10
(21) Absence of Further Requirements............................................... 10
(22) Possession of Licenses and Permits............................................ 10
(23) Insurance Laws................................................................ 10
(24) Governmental Authorization.................................................... 11
(25) Commodity Exchange Act........................................................ 11
(26) Investment Company Act........................................................ 11
(b) Officers' Certificates............................................................... 11
SECTION 2. Sale and Delivery to Underwriters; Closing.................................... 11
(a) Underwritten Securities.............................................................. 11
(b) Payment.............................................................................. 12
(c) Denominations; Registration.......................................................... 12
SECTION 3. Covenants of the Company and the Guarantor.................................... 12
(a) Compliance with Securities Regulations and Commission Requests....................... 12
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
(b) Filing of Amendments................................................................. 13
(c) Delivery of Registration Statements.................................................. 13
(d) Delivery of Prospectuses............................................................. 13
(e) Continued Compliance with Securities Laws............................................ 13
(f) Blue Sky Qualifications.............................................................. 14
(g) Earnings Statement................................................................... 14
(h) Use of Proceeds...................................................................... 14
(i) Listing.............................................................................. 14
(j) Restriction on Sale of Debt Securities............................................... 14
(k) Reporting Requirements............................................................... 15
(l) Documentary, Stamp or Similar Issue Taxes............................................ 15
SECTION 4. Payment of Expenses........................................................... 15
(a) Expenses............................................................................. 15
(b) Termination of Agreement............................................................. 15
SECTION 5. Conditions of Underwriters' Obligations....................................... 16
(a) Effectiveness of Registration Statement.............................................. 16
(b) Opinions of Counsel for Company and Guarantor........................................ 16
(c) Opinion of Counsel for Underwriters.................................................. 16
(d) Company Officers' Certificate........................................................ 17
(e) Guarantor Officers' Certificate...................................................... 17
(f) Accountant's Comfort Letters......................................................... 17
(g) Bring-down Comfort Letters........................................................... 17
(h) Ratings.............................................................................. 18
(i) Approval of Listing.................................................................. 18
(j) No Objection......................................................................... 18
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
(k) Additional Documents................................................................. 18
(l) Termination of Terms Agreement....................................................... 18
SECTION 6. Indemnification............................................................... 18
(a) Indemnification of Underwriters...................................................... 18
(b) Indemnification of Company, Guarantor, Directors and Officers........................ 19
(c) Actions against Parties; Notification................................................ 20
(d) Settlement without Consent if Failure to Reimburse................................... 20
SECTION 7. Contribution.................................................................. 20
SECTION 8. Representations, Warranties and Agreements to Survive Delivery................ 22
SECTION 9. Termination................................................................... 22
(a) Underwriting Agreement............................................................... 22
(b) Terms Agreement...................................................................... 22
(c) Liabilities.......................................................................... 23
SECTION 10. Default by One or More of the Underwriters.................................... 23
SECTION 11. Notices....................................................................... 23
SECTION 12. Parties....................................................................... 24
SECTION 13. Consent to Jurisdiction; Miscellaneous........................................ 24
SECTION 14. WAIVER OF IMMUNITIES.......................................................... 24
SECTION 15. JUDGMENT CURRENCY............................................................. 25
SECTION 16. GOVERNING LAW AND TIME........................................................ 25
SECTION 17. Effect of Headings............................................................ 25
</TABLE>
iii
<PAGE>
ACE INA HOLDINGS INC.
(a Delaware corporation)
Senior and Subordinated Debt Securities
Unconditionally Guaranteed as to Payment of
Principal, Premium, if any, and Interest by
ACE LIMITED
UNDERWRITING AGREEMENT
___________, 1999
To: The Underwriters named in the
within-mentioned Terms Agreement
Ladies and Gentlemen:
ACE INA Holdings Inc., a Delaware corporation (the "Company"), proposes to
issue and sell up to $4,000,000,000 aggregate initial public offering price, or
its equivalent based on the applicable exchange rate at the time of offering in
such foreign or composite currencies as the Company shall designate at the time
of offering, of its senior or subordinated debt securities (the "Debt
Securities"), from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale. The Debt Securities will be
unconditionally guaranteed as to payment of principal, premium, if any, and
interest by ACE Limited, a Cayman Islands company (the "Guarantor").
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
____________, 1999 (the "Senior Indenture"), among the Company, the Guarantor
and The First National Bank of Chicago, as trustee (the "Senior Trustee"), or as
subordinated indebtedness (the "Subordinated Debt Securities") under an
indenture, dated as of ____________, 1999 (the "Subordinated Indenture", and
collectively with the Senior Indenture, the "Indentures", and each, an
"Indenture"), between the Company, the Guarantor and The First National Bank of
Chicago, as trustee (the "Subordinated Trustee", and collectively with the
Senior Trustee, the "Trustees", and each, a "Trustee"). Each series of Debt
Securities may vary, as applicable, as to title, aggregate principal amount,
rank, interest rate or formula and timing of payments thereof, stated maturity
date, redemption and/or repayment provisions, sinking fund requirements,
conversion or exchange provisions and any other variable terms established by or
pursuant to the applicable Indenture.
Whenever the Company determines to make an offering of Debt Securities, the
Company and the Guarantor will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Debt Securities to, and the purchase
and offering thereof by, the underwriters specified in the Terms Agreement (the
"Underwriters", which term shall include any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Debt
Securities shall specify the aggregate principal amount of Debt Securities to be
<PAGE>
issued (the "Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter acting as co-manager in connection
with such offering, the aggregate principal amount of Underwritten Securities
which each such Underwriter severally agrees to purchase, whether such offering
is on a fixed or variable price basis and, if on a fixed price basis, the
initial offering price, the price at which the Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment of the Underwritten Securities and any other material variable terms of
the Underwritten Securities. The Terms Agreement, which shall be substantially
in the form of Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between the Company and one or more
of the Underwriters, acting for themselves and, if applicable, as
representative(s) of any other Underwriters. Each offering of Underwritten
Securities will be governed by this Underwriting Agreement, as supplemented by
the applicable Terms Agreement. As used herein, the term "Representative(s)"
means, with respect to any offering of Debt Securities, any Underwriter
specified as the representative of the Underwriters of such offering in the
applicable Terms Agreement and if none is so designated, it means the
Underwriters.
The Company and the Guarantor have filed with the Securities and Exchange
Commission (the "Commission") a joint registration statement on Form S-3 (No.
333-78841) and pre-effective amendments nos. 1 and 2 thereto, for the
registration of the Debt Securities and the guarantee thereof of the Guarantor
(the "Guarantee") under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company and the Guarantor have
filed such post-effective amendments thereto as may be required prior to the
execution of the applicable Terms Agreement and each such post-effective
amendment has been declared effective by the Commission. Such registration
statement (as so amended, if applicable), including the information, if any,
deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations
(the "Rule 430A Information") or Rule 434(d) of the 1933 Act Regulations (the
"Rule 434 Information"), is referred to herein as the "Registration Statement";
and the final prospectus and the final prospectus supplement relating to the
offering of the Underwritten Securities, in the form first furnished to the
Underwriters by the Company and the Guarantor for use in connection with the
offering of the Underwritten Securities, are collectively referred to herein as
the "Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Company and the Guarantor file a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462 Registration Statement; and provided, further, that if the
Company and the Guarantor elect to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to include
the final or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "Term Sheet"), as the case may be, in the form first furnished
to the Underwriters by the Company and the Guarantor in reliance upon Rule 434
of the 1933 Act Regulations, and all references in this
2
<PAGE>
Underwriting Agreement to the date of the Prospectus shall mean the date of the
Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the execution and
delivery of the applicable Terms Agreement. For purposes of this Underwriting
Agreement, all references to the Registration Statement, Prospectus, Term Sheet
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company and the Guarantor. The
Company and the Guarantor represent and warrant to each Underwriter named in the
applicable Terms Agreement, as of the date thereof and as of the Closing Time
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company and the
-----------------------------------------
Guarantor meet the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company or the Guarantor, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. In addition, each Indenture has been
duly qualified under the 1939 Act.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Guarantor's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any
3
<PAGE>
amendments thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Time, neither
the Prospectus nor any amendments and supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
If the Company and the Guarantor elect to rely upon Rule 434 of the 1933
Act Regulations, the Company and the Guarantor will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company or the Guarantor in writing by any Underwriter
through the Representative(s) expressly for use in the Registration
Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to be
----------------------
incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Time, did not
and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified or shall
-----------------------
certify the financial statements and any supporting schedules thereto of
the Guarantor and the CIGNA Corporation Property and Casualty Businesses
(the "CIGNA Businesses") included in the Registration Statement and the
Prospectus are independent public accountants with respect to the Guarantor
and its subsidiaries and with respect to the CIGNA Businesses, as the case
may be, as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Guarantor
--------------------
included in the Registration Statement and the Prospectus, together with
the related schedules and
4
<PAGE>
notes, as well as those financial statements, schedules and notes of any
other entity included therein, present fairly the financial position of the
Guarantor and its consolidated subsidiaries, or such other entity, as the
case may be, at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Guarantor and its consolidated
subsidiaries, or such other entity, as the case may be, for the periods
specified. Such financial statements have been prepared in conformity with
United States generally accepted accounting principles ("GAAP") applied on
a consistent basis throughout the periods involved, except as indicated
therein or in the notes thereto. The financial statements of the CIGNA
Businesses included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the combined
financial position of the CIGNA Businesses at the dates indicated and the
combined statement of income, comprehensive income and invested equity and
cash flows of the CIGNA Businesses for the periods specified; said
financial statements have been prepared in conformity with GAAP applied on
a consistent basis throughout the periods involved, except as indicated
therein or in the notes thereto. The supporting schedules, if any, included
in the Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information, if any,
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the related audited
financial statements included in the Registration Statement and the
Prospectus. The pro forma financial statements of the Guarantor and its
subsidiaries and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(5) No Material Adverse Change in Business. Since the respective dates
--------------------------------------
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein (i) neither the Guarantor
nor any of its subsidiaries (including the Company) has sustained any
material loss or material interference with its business from any action,
notice, order or decree from an insurance regulatory authority and (ii)
there has been (A) no material adverse change in case reserves or losses or
loss expense of the Guarantor and its consolidated subsidiaries (including
the Company) and (B) no material adverse change, nor any development or
event involving a prospective material adverse change, in the financial
condition, business, or results of operations of the Guarantor and its
subsidiaries (including the Company) considered as one enterprise, in
either case whether or not arising in the ordinary course of business (a
"Material Adverse Change").
(6) Good Standing of the Company. The Company has been duly
----------------------------
incorporated and is subsisting and in good standing under the laws of the
State of Delaware, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the applicable Terms
Agreement. The Company is duly qualified to transact business as a foreign
corporation
5
<PAGE>
and is in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify or be in good
standing would not reasonably be expected to result in a Material Adverse
Change.
(7) Good Standing of the Guarantor. The Guarantor has been duly
------------------------------
organized and is subsisting and in good standing under the laws of the
Cayman Islands, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the applicable Terms
Agreement. The Guarantor is duly qualified to transact business as a
foreign corporation and is in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to so qualify or be
in good standing would not reasonably be expected to result in a Material
Adverse Change.
(8) Good Standing of Corporate Subsidiaries. Each subsidiary of the
---------------------------------------
Guarantor, other than such subsidiaries as would not, individually or in
the aggregate, constitute a "significant subsidiary" as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act
(each, a "Significant Subsidiary") (including the Company) which is a
corporation has been duly incorporated or organized and is an existing
corporation in good standing (with respect to jurisdictions which recognize
such concept) under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus; and each such
Significant Subsidiary of the Guarantor is duly qualified to transact
business as a foreign corporation and is in good standing (with respect to
jurisdictions which recognize such concept) in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to so qualify or be
in good standing would not reasonably be expected to result in a Material
Adverse Change; all of the issued and outstanding capital stock of each
such Significant Subsidiary of the Guarantor has been duly authorized and
validly issued and is fully paid and nonassessable; and all of the issued
and outstanding capital stock of each such Significant Subsidiary is owned
by the Guarantor, directly or through subsidiaries, except for de minimis
shareholdings as required to comply with applicable law, and such capital
stock is owned free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity (except for restrictions on
transferability of the shares of insurance subsidiaries, under applicable
law).
(9) Good Standing of Partnership Subsidiaries. Each Significant
-----------------------------------------
Subsidiary of the Guarantor which is a partnership has been duly formed and
is an existing partnership in good standing (with respect to jurisdictions
which recognize such concept) under the laws of the jurisdiction of its
formation, with power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; and
each such Significant Subsidiary of the Guarantor is duly qualified to
transact business and is in good standing (with respect to jurisdictions
which recognize such concept) in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify or be in good
standing
6
<PAGE>
would not reasonably be expected to result in a Material Adverse Change;
all of the outstanding equity interests of each such Significant Subsidiary
of the Guarantor have been duly authorized and validly issued; and all of
the equity interests of each such Significant Subsidiary are owned by the
Guarantor, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity (other than
immaterial amounts necessary to comply with applicable law).
(10) Capitalization. If the Prospectus contains a "Capitalization"
--------------
section, the authorized, issued and outstanding shares of capital stock of
the Guarantor are as set forth in the column entitled "Actual" under such
section (except for subsequent issuances thereof, if any, pursuant to
reservations, agreements or employee benefit plans or pursuant to the
exercise of convertible securities or options). Such shares of capital
stock have been duly authorized and validly issued by the Guarantor and are
fully paid and non-assessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any
securityholder of the Guarantor.
(11) Authorization of this Underwriting Agreement and Terms Agreement.
----------------------------------------------------------------
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company and the Guarantor.
(12) Authorization of Underwritten Securities. The Underwritten
----------------------------------------
Securities have been, or as of the date of such Terms Agreement will have
been, duly authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Underwritten Securities payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
Such Underwritten Securities will be in the form contemplated by, and each
registered holder thereof will be entitled to the benefits of, the
applicable Indenture.
(13) Authorization of Guarantee. The Guarantee has been, or as of the
--------------------------
date of such Terms Agreement will have been, duly authorized by the
Guarantor for issuance and sale pursuant to this Underwriting Agreement and
the applicable Terms Agreement. Such Guarantee, when issued and delivered
in the manner provided for in the applicable Indenture, will constitute a
valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as the enforcement thereof
7
<PAGE>
may be limited by bankruptcy, insolvency (including, without limitation,
all laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(14) Authorization of the Indentures. The applicable Indenture has
-------------------------------
been, or prior to the issuance of the Debt Securities thereunder will have
been, duly authorized, executed and delivered by the Company and the
Guarantor and, upon such authorization, execution and delivery, will
constitute a valid and binding agreement of the Company and the Guarantor,
enforceable against each of them in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(15) Descriptions of the Underwritten Securities, the Guarantee and the
------------------------------------------------------------------
Indentures. The Underwritten Securities being sold pursuant to the
----------
applicable Terms Agreement, the Guarantee and each applicable Indenture, as
of each Representation Date, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(16) Non-Taxation of Interest. Except as disclosed in the Prospectus,
------------------------
under current laws and regulations of the Cayman Islands and Bermuda and
any political subdivision thereof, all interest payable on the Underwritten
Securities may be paid by the Guarantor pursuant to the Guarantee to the
holder thereof in United States dollars and freely transferred out of the
Cayman Islands or Bermuda and all such payments made to holders thereof or
therein who are non-residents of the Cayman Islands or Bermuda will not be
subject to income, withholding or other taxes under laws and regulations of
the Cayman Islands or Bermuda or any political subdivision or taxing
authority thereof or therein and will otherwise be free and clear of any
other tax, duty, withholding or deduction in the Cayman Islands or Bermuda
or any political subdivision or taxing authority thereof or therein and
without the necessity of obtaining any governmental authorization in the
Cayman Islands or Bermuda or any political subdivision or taxing authority
thereof or therein.
(17) Reserves. The description of the Guarantor's reserves and
--------
reserving methodology and assumptions described in the Prospectus is
accurate and fairly presents the information set forth therein in all
material respects and, since the date of the latest financial statements
included in the Prospectus, no loss experience has developed which would
require or make it appropriate for the Guarantor to alter or modify such
methodology.
(18) Absence of Defaults and Conflicts. Neither the Guarantor or any of
---------------------------------
its subsidiaries (including the Company) is in violation of its charter or
by-laws or partnership agreement, as the case may be, or in default in the
performance or observance
8
<PAGE>
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Guarantor or any
of its subsidiaries (including the Company) is a party or by which it or
any of them may be bound, or to which any of the assets, properties or
operations of the Guarantor or any of its subsidiaries (including the
Company) is subject (collectively, "Agreements and Instruments"), except
for such defaults that would not reasonably be expected to result in a
Material Adverse Change. The execution, delivery and performance of this
Underwriting Agreement, the applicable Terms Agreement and each applicable
Indenture and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company or the Guarantor in connection
with the transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus, and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
(including, without limitation, the issuance and sale of the Underwritten
Securities and the Guarantee, and the use of the proceeds from the sale of
the Underwritten Securities and the Guarantee as described under the
caption "Use of Proceeds") and compliance by the Company and the Guarantor,
as applicable, with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Guarantor or any of its subsidiaries (including the Company) pursuant to,
any Agreements and Instruments (except for such conflicts, breaches,
defaults or Repayment Events or liens, charges or encumbrances that would
not reasonably be expected to result in a Material Adverse Change), nor
will such action result in any violation of the provisions of the charter
or by-laws or partnership agreement, as the case may be, of the Guarantor
or any of its subsidiaries (including the Company) or, to the best of the
Company's and the Guarantor's knowledge, any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Guarantor or any of its subsidiaries (including the Company) or over any of
the assets, properties or operations of the Guarantor or any of its
subsidiaries (including the Company). As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Guarantor or any of its
subsidiaries (including the Company).
(19) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company or the Guarantor threatened, against or affecting the Guarantor
or any of its subsidiaries (including the Company) which is required to be
disclosed in the Registration Statement and the Prospectus (other than as
stated therein), or which would reasonably be expected to result in a
Material Adverse Change, or which would reasonably be expected to
materially and adversely affect the ability of the Company or the Guarantor
to perform its obligations under this Agreement or the applicable Terms
Agreement.
9
<PAGE>
(20) Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(21) Absence of Further Requirements. No consent, approval,
-------------------------------
authorization, or order of, or filing with, any governmental agency or body
or any court, domestic or foreign, is required for the due authorization,
execution or delivery by the Company or the Guarantor of this Underwriting
Agreement or the applicable Terms Agreement or for the performance by the
Company or the Guarantor of the transactions contemplated under the
Prospectus, this Underwriting Agreement, such Terms Agreement or the
applicable Indenture, as applicable, except such as have been obtained and
made under the Act, such filing of the Prospectus as has been made with the
Bermuda Registrar of Companies under the Companies Act 1981 of Bermuda,
such as may be required under state securities laws and such as have been
disclosed or are contemplated in the Acquisition Agreement.
(22) Possession of Licenses and Permits. The Guarantor and its
----------------------------------
subsidiaries (including the Company) possess such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to so possess any such
Governmental Licenses would not, singly or in aggregate, reasonably be
expected to result in a Material Adverse Change. The Guarantor and its
subsidiaries (including the Company) are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, reasonably be expected to
result in a Material Adverse Change. All of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not reasonably be expected to result in a
Material Adverse Change. Neither the Guarantor nor any of its subsidiaries
(including the Company) has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to result in a Material
Adverse Change.
(23) Insurance Laws. Each of the Guarantor and its insurance
--------------
subsidiaries (including insurance holding companies) is duly registered,
licensed or admitted as an insurer or an insurance holding company (as
applicable) in each jurisdiction where it is required to be so licensed or
admitted to conduct its business as presently conducted, except where the
failure to be so registered, licensed or admitted would not reasonably be
expected to result in a Material Adverse Change; each of the Guarantor and
its insurance subsidiaries (including insurance holding companies) is in
compliance with all applicable insurance statutes and regulations and has
filed all reports, documents or other information required to be filed
under such statutes and regulations, except where the failure to comply or
file would not reasonably be expected to result in a Material Adverse
Change.
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(24) Governmental Authorization. Except as set forth in the
--------------------------
Registration Statement and the Prospectus, no authorization, approval or
consent of any governmental authority or agency is required (other than any
license as an insurer or insurance holding company and other than those
which have already been obtained) under the laws of any jurisdiction in
which the Guarantor or any of its subsidiaries (including the Company)
conduct their respective businesses in connection with the ownership,
directly or indirectly, by the Guarantor of equity interests in any
subsidiary (including the Company) or the repatriation of any amount from
or to the Guarantor or any of its subsidiaries (including the Company),
except to the extent that the failure to obtain such authorization,
approval or consent would not reasonably be expected to result in a
Material Adverse Change.
(25) Commodity Exchange Act. The Underwritten Securities, upon
----------------------
issuance, will be excluded or exempted under, or beyond the purview of, the
Commodity Exchange Act, as amended (the "Commodity Exchange Act"), and the
rules and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(26) Investment Company Act. The Company and the Guarantor are not, and
----------------------
upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as described
in the Prospectus they will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
(b) Officers' Certificates. Any certificate signed by any officer of the
Company, the Guarantor or any of their respective subsidiaries and delivered to
the Representative(s) or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company, the Guarantor or such subsidiary, as the case may be,
to each Underwriter as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of, the
Underwritten Securities shall be made at the offices of Brown & Wood llp, One
World Trade Center, New York, New York, or at such other place as shall be
agreed upon by the Representative(s) and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representative(s) and the Company (such time and date of
payment and delivery being herein called "Closing Time").
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Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative(s) for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative(s), for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. Any
Representative, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations; Registration. If the Underwritten Securities are issued
other than in book-entry form, certificates for the Underwritten Securities
shall be in such denominations and registered in such names as the
Representative(s) may request in writing at least one full business day prior to
the Closing Time. If the Underwritten Securities are issued other than in book-
entry form, certificates for the Underwritten Securities will be made available
for examination and packaging by the Representative(s) in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Company and the Guarantor. The Company and the
------------------------------------------
Guarantor covenant with the Representative(s) and with each Underwriter
participating in the offering of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company and the Guarantor, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations, if and as applicable, and they will notify the
Representative(s) immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt of
any comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company and the
Guarantor will promptly effect the filings necessary pursuant to Rule 424 and
will take such steps as they deem necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, they will promptly file the
Prospectus. The Company and the Guarantor will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company and the Guarantor will give the
Representative(s) notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b) of the 1933
Act Regulations), any Term Sheet or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act,
12
<PAGE>
the 1934 Act or otherwise, will furnish the Representative(s) with copies of any
such documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will give the Representative(s) a reasonable opportunity
to comment on any such document prior to such proposed filing or use, as the
case may be.
(c) Delivery of Registration Statements. The Company and the Guarantor have
furnished or will deliver to the Representative(s) and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representative(s), without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters. The Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company and the Guarantor will deliver to
each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company and the Guarantor
hereby consent to the use of such copies for purposes permitted by the 1933 Act.
The Company and the Guarantor will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus as such Underwriter
may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the Guarantor
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Underwritten Securities as contemplated in this Underwriting Agreement and
the applicable Terms Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Underwritten
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company and the Guarantor, to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company and the Guarantor will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus
13
<PAGE>
comply with such requirements, and the Company and the Guarantor will furnish to
the Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Guarantor will use their
best efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representative(s)
may designate and to maintain such qualifications in effect for a period of not
less than one year from the date of the applicable Terms Agreement; provided,
however, that the Company and the Guarantor shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which they are not so qualified
or to subject themselves to taxation in respect of doing business in any
jurisdiction in which they are not otherwise so subject. In each jurisdiction
in which the Underwritten Securities have been so qualified, the Company and the
Guarantor will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Guarantor and, to the extent separately required
pursuant to Rule 158 under the 1933 Act, the Company will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company and the Guarantor will use their best efforts to
effect the listing of the Underwritten Securities, prior to the Closing Time, on
any national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(j) Restriction on Sale of Debt Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, neither the Company nor the Guarantor will, without the
prior written consent of the Representative(s), directly or indirectly, issue,
sell, offer or contract to sell, grant any option for the sale of, or otherwise
dispose of, the debt securities specified in such Terms Agreement.
(k) Reporting Requirements. The Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) Documentary, Stamp or Similar Issue Taxes. The Company and the Guarantor
will jointly and severally indemnify and hold harmless the Underwriters against
any documentary, stamp or similar issue tax, including any interest and
penalties, on the creation, issue and sale of the Underwritten Securities and on
the execution and delivery of this Underwriting Agreement or
14
<PAGE>
the applicable Terms Agreement. All payments to be made by the Company or the
Guarantor hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Company or the Guarantor is compelled by law to deduct or
withhold such taxes, duties or charges. In that event, the Company or the
Guarantor shall pay such additional amounts as may be necessary in order that
the net amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction had been
made.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company and the Guarantor will pay all expenses incident
to the performance of their obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures, and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities and any certificates for
the Underwritten Securities, to the Underwriters, including any transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements of
the Company's and the Guarantor's counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of the Trustees, and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, if applicable, (viii) the fees and
expenses incurred with respect to the listing of the Underwritten Securities, if
applicable, and (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Underwritten Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is terminated
by the Representative(s) in accordance with the provisions of Section 5 or
Section 9(a)(i) or 9(a)(ii) hereof, the Company and the Guarantor shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company and the Guarantor contained in Section 1 hereof or
in certificates of any officer of the Company, the Guarantor or any of their
respective subsidiaries delivered pursuant to the
15
<PAGE>
provisions hereof, to the performance by the Company and the Guarantor of their
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to
the description of the Underwritten Securities and the Guarantee, the specific
method of distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A), or, if the Company and the Guarantor have elected to rely upon
Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434
Information shall have been filed with the Commission in accordance with Rule
424(b)(7).
(b) Opinions of Counsel for Company and Guarantor. At Closing Time, the
Representative(s) shall have received the favorable opinions, each dated as of
Closing Time, of Maples and Calder, Cayman Islands counsel for the Guarantor,
Conyers Dill & Pearman, Bermuda Counsel for the Guarantor, Peter N. Mear, Esq.,
General Counsel of the Guarantor, and Mayer, Brown & Platt, United States
counsel for the Company and the Guarantor, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letters for each of the other Underwriters, to the effect set forth in: Exhibit
B hereto with respect to the opinion of Maples and Calder; Exhibit C hereto with
respect to the opinion of Conyers Dill & Pearman; Exhibit D hereto with respect
to the opinion of Peter N. Mear, Esq. and Exhibit E hereto with respect to the
opinion of Mayer, Brown & Platt, and, as to each opinion, to such further effect
as the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative(s) shall have received the favorable opinion, dated as of Closing
Time, of Brown & Wood llp, counsel for the Underwriters, in form and substance
reasonably satisfactory to the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representative(s). Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company, the Guarantor and their respective subsidiaries and certificates of
public officials.
(d) Company Officers' Certificate. At Closing Time, the Representative(s)
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial officer or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has not been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change,
or any development or event involving a prospective material adverse change, in
the financial
16
<PAGE>
condition, business or results of operations of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, (ii) the representations and warranties of the Company in Section 1(a)
are true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted, are pending or, to the best of such officer's
knowledge, are threatened by the Commission.
(e) Guarantor Officers' Certificate. At Closing Time, the Representative(s)
shall have received a certificate of the Chairman, President and Chief Executive
Officer or the General Counsel and Secretary of the Guarantor and of the chief
financial officer, chief accounting officer or chief investment officer of the
Guarantor, dated as of Closing Time, to the effect that (i) there has not been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change,
or any development or event involving a prospective material adverse change, in
the financial condition, business or results of operations of the Guarantor and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the representations and warranties of the
Guarantor in Section 1(a) are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Guarantor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending or, to the
best of such officer's knowledge, are threatened by the Commission.
(f) Accountant's Comfort Letters. At the time of the execution of the
applicable Terms Agreement, the Representative(s) shall have received from
Pricewaterhouse Coopers llp letters, each dated such date, in form and substance
satisfactory to the Representative(s), together with signed or reproduced copies
of such letters for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letters. At Closing Time, the Representative(s) shall
have received from Pricewaterhouse Coopers llp letters, each dated as of Closing
Time, to the effect that they reaffirm the statements made in the letters
furnished pursuant to subsection (f) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(h) Ratings. At Closing Time, the Underwritten Securities shall have the
ratings accorded by any "nationally recognized statistical rating organization",
as defined by the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations ("Rating Organization"), if and as specified in the applicable Terms
Agreement, and the Company and the Guarantor shall have delivered to the
Representative(s) a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representative(s),
confirming that the Underwritten Securities have such ratings. Since the time
of execution of such Terms Agreement, there shall not have occurred a
downgrading in, or withdrawal of, the rating assigned
17
<PAGE>
to the Underwritten Securities or any of the Guarantor's other securities or the
Guarantor's financial strength or claims paying ability by any such Rating
Organization, and no such Rating Organization shall have publicly announced that
it has under surveillance or review with negative implications its rating of the
Underwritten Securities or any of the Guarantor's other securities or the
Guarantor's financial strength or claims paying ability.
(i) Approval of Listing. At Closing Time, the Underwritten Securities shall
have been approved for listing, subject only to official notice of issuance, on
the securities exchanges, if any, specified in the applicable Terms Agreement.
(j) Additional Documents. At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Underwritten
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company and the
Guarantor in connection with the issuance and sale of the Underwritten
Securities and the Guarantee as herein contemplated shall be satisfactory in
form and substance to the Representative(s) and counsel for the Underwriters.
(k) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by the Representative(s) by
notice to the Company and the Guarantor at any time at or prior to the Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company and the Guarantor agree to
jointly and severally indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any
18
<PAGE>
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected with
the written consent of the Company and the Guarantor; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representative(s)),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or the
Guarantor by any Underwriter through the Representative(s) expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Guarantor, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, the
Guarantor, their respective directors, each of their respective officers who
signed the Registration Statement, and each person, if any, who controls the
Company or the Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company or the Guarantor by such Underwriter through the Representative(s)
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representative(s),
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Guarantor. An indemnifying
party may participate at its own expense in the defense of any such action;
19
<PAGE>
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantor, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Guarantor, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Guarantor, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Underwritten Securities pursuant to the applicable Terms Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule
20
<PAGE>
434 is used, the corresponding location on the Term Sheet bear to the aggregate
initial public offering price of such Underwritten Securities as set forth on
such cover.
The relative fault of the Company and the Guarantor, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantor or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company and the Guarantor, each officer of the Company and
the Guarantor who signed the Registration Statement, and each person, if any,
who controls the Company or the Guarantor within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Guarantor. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the aggregate principal amount of Initial Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement, and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
- --------
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company, the Guarantor or any of their respective subsidiaries
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or
21
<PAGE>
controlling person, or by or on behalf of the Company or the Guarantor, and
shall survive delivery of and payment for the Underwritten Securities.
SECTION 9. Termination.
-----------
(a) Terms Agreement. The Representative(s) may terminate this Agreement and
the applicable Terms Agreement, by notice to the Company and the Guarantor, at
any time at or prior to the Closing Time, if (i) there has been, since the time
of execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change, or any
development or event involving a prospective material adverse change, in the
financial condition, business or results of operations of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has been, since the time of execution
of such Terms Agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change, or any development or
event involving a prospective material adverse change, in the financial
condition, business or results of operations of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (iii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case referred to in this
clause (iii), the effect of which is such as to make it, in the judgment of the
Representative(s), impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, or (iv) trading
in any securities of the Company or the Guarantor has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (v) a
banking moratorium has been declared by either U.S. Federal, New York or Bermuda
authorities or, if the Underwritten Securities are denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(b) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
22
<PAGE>
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then the Representative(s) shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representative(s)
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, either the Representative(s) or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative(s) at the address specified in the applicable
Terms Agreement; notices to the Company shall be directed to it at 1601 Chestnut
Street, P.O. Box 41484, Philadelphia, PA 19101-1481, attention of General
Counsel; and notices to the Guarantor shall be directed to it at The ACE
Building, 30 Woodbourne Avenue, Hamilton HM 08 Bermuda, attention of General
Counsel and Secretary.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
-------
Agreement shall each inure to the benefit of and be binding upon the Company and
the Guarantor and, upon execution of such Terms Agreement, any Underwriters
named therein and their respective successors. Nothing expressed or mentioned
in this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Company, the Guarantor and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and
23
<PAGE>
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Consent to Jurisdiction; Miscellaneous. Each of the parties
--------------------------------------
hereto hereby expressly and irrevocably submits to the non-exclusive
jurisdiction of any competent court in the place of its domicile and any United
States Federal or New York State court sitting in the Borough of Manhattan in
The City of New York in any action, suit or proceeding arising out of or
relating to this Underwriting Agreement or the applicable Terms Agreement or the
transactions contemplated hereby or thereby to the extent that such court has
subject matter jurisdiction over the controversy, and expressly and irrevocably
waives, to the extent permitted under applicable law, any immunity from the
jurisdiction thereof and any claim or defense in such action, suit or proceeding
based on a claim of improper venue, forum non conveniens or any similar basis to
----- --- ----------
which it might otherwise be entitled in any such action, suit or proceeding.
Each of the Company and the Guarantor irrevocably appoints CT Corporation as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such action, suit or proceeding, and agrees that
service of process upon such agent, and written notice of said service to the
Company or the Guarantor by the person serving the same to the address provided
in Section 11, shall be deemed in every respect effective service of process
upon the Company or the Guarantor, as the case may be, in any such action, suit
or proceeding. Each of the Company and the Guarantor further agrees to take any
and all action as may be necessary to maintain such designation and appointment
of such agent in full force and effect for a period of seven years from the date
of this Underwriting Agreement.
SECTION 14. WAIVER OF IMMUNITIES. To the extent that the Company or the
--------------------
Guarantor or any of their respective properties, assets or revenues may have or
may hereafter become entitled to, or have attributed to them, any right of
immunity, on the grounds of sovereignty, from any legal action, suit or
proceeding, from set-off or counterclaim, from the jurisdiction of any court,
from service of process, from attachment upon or prior to judgment, or from
attachment in aid of execution of judgment, or from execution of judgment, other
legal process or proceeding for the giving of any relief or for the enforcement
of any judgment, in any jurisdiction in which proceedings may at any time be
commenced, with respect to their obligations, liabilities or any other matter
under or arising out of or in connection with this Underwriting Agreement or any
additional agreement, each of the Company and the Guarantor hereby irrevocably
and unconditionally, to the extent permitted by applicable law, waives and
agrees not to plead or claim any such immunity and consents to such relief and
enforcement.
SECTION 15. JUDGMENT CURRENCY. The Company and the Guarantor jointly and
-----------------
severally agree to indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any judgment or order being given or made for any
amount due hereunder and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which
24
<PAGE>
the United States dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange at which such
Underwriter is able to purchase United States dollars with the amount of the
Judgment Currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of each of the Company
and the Guarantor and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "rate of exchange" shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
SECTION 16. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
----------------------
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 17. Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereof.
Very truly yours,
ACE INA HOLDINGS INC.
By: ___________________________
Name:
Title:
ACE LIMITED
By: ___________________________
Name:
Title:
25
<PAGE>
Exhibit A
ACE INA HOLDINGS INC.
(a Delaware corporation)
Debt Securities
Unconditionally Guaranteed as to Payment of
Principal, Premium, if any, and Interest by
ACE LIMITED
TERMS AGREEMENT
---------------
[-]
To: ACE INA HOLDINGS INC.
1601 Chestnut Street
P.O. Box 41484
Philadelphia, PA 19101-1481
ACE LIMITED
The ACE Building
30 Woodbourne Avenue
Hamilton HM 08, Bermuda
Ladies and Gentlemen:
We understand that ACE INA Holdings Inc., a Delaware company (the
"Company"), proposes to issue and sell $ aggregate principal amount of
its [senior] [subordinated] debt securities (the "Underwritten Securities"),
which will be unconditionally guaranteed as to payment of principal, premium, if
any, and interest by ACE Limited, a Cayman Islands company. Subject to the
terms and conditions set forth or incorporated by reference herein, the
underwriter[s] named below (the "Underwriters") offer[s] to purchase [,
severally and not jointly,] the principal amount of Underwritten Securities
opposite [its] [their] name[s] set forth below at the purchase price set forth
below.
A-1
<PAGE>
Principal Amount
Underwriter of Underwritten Securities
- --------------------------------------------------------
________________
Total [$]
===
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion or exchange provisions:
Guarantee Provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price: % of the
principal amount, plus accrued interest [amortized original issue
discount], if any, from _________________.
Purchase price: ___% of principal amount, plus accrued interest [amortized
original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
Notices: Notice to the Underwriters shall be directed to the Representative(s)
c/o:
[
]
All of the provisions contained in the document attached as Annex I hereto
entitled "ACE INA HOLDINGS INC.--Senior and Subordinated Debt Securities -
Unconditionally Guaranteed as to Payment of Principal, Premium, if any, and
Interest by ACE LIMITED --Underwriting
A-2
<PAGE>
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[REPRESENTATIVE(S)]
By _________________________
Authorized Signatory
[Acting on behalf of [itself] [themselves] and as
Representative(s) of the other named Underwriters.]
Accepted:
ACE INA HOLDINGS INC.
By _________________________
Name:
Title:
ACE LIMITED
By _________________________
Name:
Title:
A-3
<PAGE>
Exhibit B
FORM OF OPINION OF MAPLES AND CALDER, GUARANTOR'S
CAYMAN ISLANDS COUNSEL, TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) The Guarantor has been duly incorporated and is validly existing
and in good standing as an exempted company, under the laws of the Cayman
Islands, and has the corporate power and corporate authority to own, lease
and operate its property, and to conduct its business, as described in the
Registration Statement and the Prospectus, and to enter into and perform
its obligations under, or as contemplated under, the Underwriting Agreement
and the applicable Terms Agreement.
(ii) The authorized share capital of the Guarantor, as set out in its
Memorandum and Articles of Association, conforms as to legal matters to the
description thereof contained in the Registration Statement and the
Prospectus. All of the Guarantor's Ordinary Shares have been duly and
validly authorized and issued by the Guarantor and are registered in the
books of the Guarantor as fully paid. On the basis that the contractual
subscription price of all such Ordinary Shares is fully paid in cash (or
equivalent consideration approved by the Directors), such Ordinary Shares
issued may properly be credited as fully paid under Cayman Islands law and,
as the Guarantor has been established on the basis that the liability of
its shareholders is limited to the amount, if any, unpaid on their Ordinary
Shares (see Clause 5 of the Memorandum and Articles of Association), there
is no rule of Cayman Islands law that would impose any further liability on
persons holding Ordinary Shares in the Guarantor, merely by reason of such
shareholding. So far as Cayman Islands law is concerned, the registered
holders have good and valid title to their respective Ordinary Shares on
the assumption that they have not entered into any liens, encumbrances,
equities or claims which could give rise to any equitable interest on the
part of any third party in respect of such Ordinary Shares. The holders of
Ordinary Shares are not subject to any pre-emptive rights under the laws of
the Cayman Islands or the Guarantor's Memorandum and Articles of
Association.
(iii) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Guarantor.
(iv) The Guarantee has been duly authorized, executed and delivered by
the Guarantor for issuance and sale pursuant to the Underwriting Agreement
and the applicable Terms Agreement.
(v) Each applicable Indenture has been duly authorized, executed and
delivered by the Guarantor.
(vi) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under, the Underwriting
Agreement and the applicable Terms Agreement and each applicable Indenture
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Guarantor in connection with the transactions
contemplated by the Registration Statement and the Prospectus and the
B-1
<PAGE>
consummation by the Guarantor of the transactions contemplated by the
Underwriting Agreement and such Terms Agreement do not and will not (A)
violate any provision of the Memorandum and Articles of Association of the
Guarantor; (B) contravene any provision of any law, public rule or
regulation of the Cayman Islands applicable to the Guarantor; (C) to the
best of such counsel's knowledge, contravene any existing published order
or decree of the courts of the Cayman Islands by which the Guarantor is
bound or by which its properties or assets may be affected; or (D) require
any consent, approval or authorization or order of, or qualification with,
any Cayman Islands governmental agency in connection with the offer and
sale of the Underwritten Securities and the Guarantee.
(vii) To the best of such counsel's knowledge, but based only upon a
search of the cause list at the offices of the Grand Courts of the Cayman
Islands, there was no action, suit or proceeding to which the Guarantor or
any of its subsidiaries is a party or to which the assets, properties or
operations of the Guarantor or any of its subsidiaries is subject, before
the courts of the Cayman Islands at the close of business on [specify a
recent date].
(viii) All statements made in the Prospectus with regard to statutes,
regulations, rules, treaties and other laws of the Cayman Islands
(including, but not limited to, insurance, regulatory and tax matters and
the Companies Law (1995 Revision) of the Cayman Islands) and enforcement of
judgments in the Cayman Islands are accurate.
(ix) Pursuant to the Underwriting Agreement, and to the extent that the
laws of the Cayman Islands are relevant, the Guarantor has legally,
validly, effectively and irrevocably submitted to the jurisdiction of the
United States Federal and New York State courts sitting in the Borough of
Manhattan in The City of New York, State of New York, and has legally,
validly and effectively appointed CT Corporation System as the authorized
agent of the Guarantor for the purposes described in Section 13 of the
Underwriting Agreement assuming this to be the case as a matter of the
applicable United States Federal and New York State laws.
(x) The choice of the laws of the State of New York, United States of
America as the governing law of the Underwriting Agreement is a valid and
effective choice of law and in an action brought before a court of
competent jurisdiction in the Cayman Islands, the laws of the State of New
York would, to the extent specifically pleaded and proved as a fact by
expert evidence, be recognized and applied by such court to all issues
concerning the formal and essential validity of the Underwriting Agreement
and the interpretation thereof, except that in any such action such court
will apply those laws of the Cayman Islands as such court characterizes as
procedural, and will not apply those laws of the State of New York as such
court characterizes as procedural.
(xi) Although there is no statutory enforcement in the Cayman Islands
of a judgment obtained in New York, the courts of the Cayman Islands will
recognize and enforce a foreign judgment of a court of competent
jurisdiction, based on the principle that a judgment of a competent foreign
court imposes upon the judgment debtor an obligation to pay the sum for
which judgment has been given provided such judgment is
B-2
<PAGE>
final, for a liquidated sum, not in respect of taxes or a fine or penalty,
and was not obtained in a manner and is not of a kind the enforcement of
which is contrary to the public policy of the Cayman Islands. A Cayman
Islands court may stay proceedings if concurrent proceedings are being
brought elsewhere. For the purposes of enforcement of a judgment granted
against the Guarantor in respect of the Underwriting Agreement, a court in
the Cayman Islands would recognize the jurisdiction of the applicable
federal or state court to the jurisdiction of which the Guarantor has
submitted rendering such judgment if service of process on the Guarantor is
effected pursuant to and in accordance with the provisions of the
Underwriting Agreement.
(xii) On the basis that the Guarantor carries on its business as set
forth in the Prospectus, there is no requirement that it be licensed under
the Insurance Law, 1979, as amended of the Cayman Islands.
[In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the Cayman Islands, to
the extent such counsel deems proper and specified in such opinion, upon the
opinion of other counsel whom such counsel believes to be reliable (which
opinion shall be dated and furnished to the Representative(s) at the Closing
Time, shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them), provided that such counsel shall state
in their opinion that they believe that they and the Underwriters are justified
in relying upon such opinion, and (B) as to matters of fact (but not as to legal
conclusions), to the extent such counsel deems proper, on certificates of
responsible officers of the Guarantor, its subsidiaries and public officials.]
B-3
<PAGE>
Exhibit C
FORM OF OPINION OF CONYERS DILL & PEARMAN, GUARANTOR'S
BERMUDA COUNSEL, TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) Each of ACE Bermuda Insurance Ltd. and Tempest Reinsurance Company
Limited (collectively, the "Bermuda Insurance Subsidiaries") (A) is validly
existing under the laws of Bermuda as a company with limited liability and
is in good standing under the laws of Bermuda (meaning that such company
has not failed to make any filing with any Bermuda government authority or
to pay any Bermuda government fee or tax, the failure of which would make
such company immediately liable to be struck off the Register of Companies
and thereby cease to exist under the laws of Bermuda) and (B) the corporate
objects and powers contained in the Memorandum of Association of each of
the Bermuda Insurance Subsidiaries are sufficient to allow them to carry on
their business and to own, lease and operate its properties as both are
described in the Prospectus.
(ii) Based solely upon a certified copy of the Register of Members for
each of the Bermuda Insurance Subsidiaries, and without further inquiry,
(a) all of the issued shares in the share capital of each of the Bermuda
Insurance Subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable (meaning that, subject to the common law
doctrine of "piercing the corporate veil" and to any agreement to the
contrary between the registered holders and such Bermuda Insurance
Subsidiary, no further sums are required to be paid by the holders thereof
in connection with the issue of such shares); and (b) the Guarantor is the
registered holder of all the issued shares of each of the Bermuda Insurance
Subsidiaries (except for a de minimis number of shares necessary to comply
with applicable law); and (c) based solely upon the Register of Charges,
and without further inquiry, there are no registered liens, encumbrances,
equities or claims in the Register of Charges in respect of those shares.
(iii) Each of the Bermuda Insurance Subsidiaries is duly registered as
an insurer under the Insurance Act of 1978 (Bermuda) and the regulations
promulgated thereunder (together, the "Insurance Act") and as so
registered, each Bermuda Insurance Subsidiary may conduct that insurance
business which it is described in the Prospectus as carrying on; and, based
solely on the Certificates of Compliance and without independent inquiry,
each of the Bermuda Insurance Subsidiaries has filed with the appropriate
Bermuda governmental authority all reports, documents or other information
required to be filed under the Insurance Act.
(iv) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under, the Underwriting
Agreement and the applicable Terms Agreement and each applicable Indenture
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Guarantor in connection with the transactions
contemplated by the Registration Statement and the Prospectus and the
consummation by the Guarantor of the transactions contemplated by the
Underwriting Agreement and such Terms Agreement do not and will not (A)
violate any provision of the Memorandum of Association or By-laws of each
of the Bermuda Insurance
C-1
<PAGE>
Subsidiaries (B) contravene any provision of any of those laws, rules and
regulations of Bermuda which, in such counsel's opinion, based upon such
counsel's experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement and such Terms Agreement, except
that such counsel need not express any opinion in this paragraph with
respect to Bermuda securities laws; (C) based solely upon the Cause Book
and without further inquiry, contravene any judgment, order or decree by
the Bermuda Supreme Court against the Guarantor or any of the Bermuda
Insurance Subsidiaries; (D) based solely upon the Register of Charges and
without further inquiry, conflict with, result in any breach of or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any registered charge
recorded in the Register of Charges against the Guarantor or any of the
Bermuda Insurance Subsidiaries; or (E) require any consent, approval or
authorization or order of, or qualification with any Bermuda governmental
agency, except such as have been obtained under the applicable securities
laws of Bermuda in connection with the offer and sale of the Underwritten
Securities.
(v) Based solely upon the Cause Book and without further inquiry, there
is no action, suit or proceeding now pending before the Bermuda Supreme
Court to which the Guarantor or any of its subsidiaries is a party or to
which the assets, properties or operations of the Guarantor or any of its
subsidiaries is subject.
(vi) All statements (but excluding those statements forming a part of
financial information or accounts) made in the Registration Statement and
Prospectus with respect to statutes, regulations, rules, treaties and other
laws of Bermuda (including, but not limited to, statements made with
respect to the Insurance Act and Bermuda tax matters) fairly and accurately
present the information set forth therein and such counsel's opinion as to
such matters.
[In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of Bermuda, to the extent
such counsel deems proper and specified in such opinion, upon the opinion of
other counsel whom such counsel believes to be reliable (which opinion shall be
dated and furnished to the Representative(s) at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the Underwriters may rely on such opinion as if it were
addressed to them), provided that such counsel shall state in their opinion that
they believe that they and the Underwriters are justified in relying upon such
opinion, and (B) as to matters of fact (but not as to legal conclusions), to the
extent such counsel deems proper, on certificates of responsible officers of the
Guarantor, its subsidiaries and public officials.]
C-2
<PAGE>
Exhibit D
FORM OF OPINION OF PETER N. MEAR, ESQ.,
GENERAL COUNSEL OF THE GUARANTOR,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Guarantor is qualified to do business, and is in good standing,
as a foreign corporation, under the laws of each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or to be in good standing would not singly or in the aggregate
result in a Material Adverse Change.
(ii) Each of ACE Bermuda Insurance Ltd., Tempest Reinsurance Company
Limited, ACE USA, Inc. and the Company is qualified to transact business
and is in good standing (with respect to jurisdictions which recognize such
concept) in each jurisdiction in which it owns or leases real property or
in which the conduct of its business requires such qualification, except
where the failure to be so qualified or to be in good standing (with
respect to jurisdictions which recognize such concept) would not singly or
in the aggregate result in a Material Adverse Change;
(iii) Except as set forth in the Registration Statement and the
Prospectus, such counsel does not know of any outstanding (A) securities or
obligations of the Guarantor convertible into or exchangeable for any
shares of capital stock of the Guarantor or any of its subsidiaries; (B)
rights, warrants or options to acquire or purchase from the Guarantor any
shares of capital stock of the Guarantor or any such convertible or
exchangeable securities or obligations; or (C) obligations or
understandings of the Guarantor to issue or sell any shares of capital
stock of the Guarantor or any of its subsidiaries, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
obligations.
(iv) To the best of such counsel's knowledge, and other than as
disclosed in the Prospectus, there are no threatened legal proceedings
against the Guarantor or any of its subsidiaries which, if determined
adversely to the Guarantor or such subsidiary, would result in a Material
Adverse Change.
[In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent such counsel deems proper, on
certificates of responsible officers of the Company, the Guarantor, their
respective subsidiaries and public officials.]
D-1
<PAGE>
Exhibit E
FORM OF OPINION OF MAYER, BROWN & PLATT,
UNITED STATES COUNSEL FOR THE COMPANY AND THE
GUARANTOR, TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) Each of the Company and ACE USA, Inc. is duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement and the
applicable Terms Agreement and the [each] applicable [Indenture] and any
other agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions contemplated
by the Registration Statement and the Prospectus and the consummation by
the Company of the transactions contemplated by the Underwriting Agreement
and such Terms Agreement do not and will not (A) contravene any provision
of any United States federal or New York State law, rule or regulation, in
each case which, in such counsel's opinion, based on such counsel's
experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement and such Terms Agreement
("United States Applicable Laws"), except that such counsel need not
express any opinion in this paragraph with respect to state securities
laws; (B) contravene any judgment, order or decree known to such counsel
without independent inquiry of any United States federal or New York State
court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or by which the Company or any of its
subsidiaries is bound or by which their properties or assets may be
affected; (C) conflict with, result in any breach of or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or give rise to any right to accelerate the
maturity or require the prepayment of any indebtedness or the purchase of
any capital stock under, or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company or
any of its subsidiaries, pursuant to the terms of, any agreement or
instrument filed as an exhibit to the Guarantor's Annual Report on Form 10-
K or any agreement or instrument otherwise known to such counsel to which
the Guarantor or any of its subsidiaries (including the Company) is a party
or by which it or any of them may be bound, or to which any of the assets,
properties or operations of the Guarantor or any of its subsidiaries
(including the Company) is subject, or the certificate of incorporation or
bylaws of the Company or ACE USA, except for such conflicts, breaches,
violations, defaults, accelerations, repayments, repurchases, liens,
charges or encumbrances that would not singly or in the aggregate result in
a Material Adverse Change; or (D) based upon such counsel's review of the
United States Applicable Laws, require any consent, approval or
authorization or order of, or qualification with, any United States federal
or state governmental agency or authority or court, except such as have
been obtained under the 1933 Act, the 1933 Act Regulations, the 1939 Act
and the 1939 Act Regulations and such as may be required under state
securities or blue sky laws or state insurance laws in connection with the
offer and sale of the Underwritten Securities.
E-1
<PAGE>
(iii) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company.
(iv) The Underwritten Securities have been duly authorized, executed
and delivered by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement.
(v) The Underwritten Securities, when issued and authenticated in the
manner provided for in the applicable Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or corporate currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Underwritten Securities are in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the [each] applicable Indenture.
(vi) Assuming the Guarantee has been duly authorized by the Guarantor
for issuance and sale pursuant to the Underwriting Agreement and the
applicable Terms Agreement, the Guarantee, when duly executed in the manner
contemplated in the Indenture and issued and delivered to the Underwriters
in accordance with the provisions of the Underwriting Agreement, will
constitute a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(vii) The [each] applicable Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and (assuming the
Indenture has been duly authorized, executed and delivered by the Guarantor
and the applicable Trustee), the [each] applicable Indenture constitutes a
valid and binding agreement of the Company and the Guarantor, enforceable
against the Company and the Guarantor in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
E-2
<PAGE>
(viii) The Underwritten Securities, the Guarantee and the [each]
applicable Indenture conform in all material respects to the statements
relating thereto contained in the Prospectus and are in substantially the
form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(ix) Such counsel does not know, after inquiry of officers of the
Company and the Guarantor and based solely on such inquiry, of any action,
suit or proceeding before or by any United States federal or state
government, governmental instrumentality or court now pending or threatened
against or affecting the Guarantor or any of its subsidiaries (including
the Company) or any of their respective assets or properties that is
required to be described in the Registration Statement or the Prospectus
and is not so described or of any contract or other document that is
required to be described in the Registration Statement or the Prospectus,
or to be filed as an exhibit to the Registration Statement, that is not
described or filed, as required.
(x) The statements in the Registration Statement and the Prospectus
insofar as they are descriptions of contracts, agreements, instruments or
the Company's Certificate of Incorporation or legal proceedings, or
constitute statements or summaries of United States federal or New York
State laws or legal conclusions with respect thereto, are accurate and
present fairly the information required to be shown.
(xi) The discussion of tax matters set forth under the heading "Certain
Tax Consequences" in the Prospectus contains the relevant and material
provisions of present United States tax law applicable to the Underwritten
Securities and the Guarantee and the statements thereunder are true and
correct (subject to the qualifications and assumptions set forth in such
discussion) as of the Closing Date.
(xii) The Registration Statement (including any Rule 462(b)
Registration Statement) and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement (including any Rule 462(b) Registration Statement)
and Prospectus, excluding the documents incorporated by reference therein,
as of their respective effective or issue dates (other than the financial
statements and supporting schedules and other financial data included
therein or omitted therefrom and each Trustee's Statement of Eligibility on
Form T-1 (the "Form T-1s"), as to which such counsel need express no
opinion) complied as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
(xiii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules and other
financial data included therein or omitted therefrom, as to which such
counsel need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act ,
as applicable, and the rules and regulations of the Commission thereunder.
(xiv) The [each] applicable Indenture has been duly qualified under
the 1939 Act.
(xv) The Underwritten Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as
amended (the
E-3
<PAGE>
"Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(xvi) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
Such counsel shall also state that it has been advised by the Commission
that the Registration Statement (including any Rule 462(b) Registration
Statement) became effective under the 1933 Act; that any required filings of the
Prospectus pursuant to Rule 424 (b) have been made in the manner and within the
time period required by Rule 424(b); and that, based solely on conversations
with the Commission, no stop order suspending the effectiveness of the
Registration Statement (or such Rule 462(b) Registration Statement) has been
issued and no proceedings for the purpose have been instituted, are pending or,
to such counsel's knowledge, are contemplated under the 1933 Act.
Such counsel shall also state that they have examined various documents and
participated in conferences with representatives of the Company and the
Guarantor and their accountants and with representatives of the
Representative(s) and their counsel at which times the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and that, although they are not passing upon and assume no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or making any representation that they
have independently verified or checked the accuracy, completeness or fairness of
such statements, except as set forth above, no facts have come to such counsel's
attention that cause such counsel to believe that the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment thereto, at the time the Registration Statement (including any Rule
462(b) Registration Statement) or any post-effective amendment thereto
(including the filing of the Guarantor's Annual Report on Form 10-K with the
Commission) became effective or as of the date of the Terms Agreement, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or that the Prospectus or any amendment or supplement thereto, at
the date of the Prospectus, at the date of any such amendment or supplement or
at the Closing Time, included or includes any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (such counsel need not express a
belief with respect to the financial statements and supporting schedules and
other financial data included in or omitted from the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment thereto or the Prospectus or any amendment or supplement thereto).
[In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the State of New York,
the corporate laws of the State of Delaware or the federal laws of the United
States of America, to the extent such counsel deems proper and specified in such
opinion, upon the opinion of other counsel whom such counsel believes to be
reliable (which opinion shall be dated and furnished to the Representative(s) at
the Closing Time, shall be satisfactory in form and substance to counsel for
E-4
<PAGE>
the Underwriters and shall expressly state that the Underwriters may rely on
such opinion as if it were addressed to them), provided that such counsel shall
state in their opinion that they believe that they and the Underwriters are
justified in relying upon such opinion, and (B) as to matters of fact (but not
as to legal conclusions), to the extent such counsel deems proper, on
certificates of responsible officers of the Company, its subsidiaries and public
officials.]
E-5
<PAGE>
Exhibit 4.3
ACE LIMITED,
Issuer
To
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
---------------
INDENTURE
---------------
Dated as of _____________, 1999
Senior Debt Securities
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
ss. 310(a)(1) ...............................................................6.7
(a)(2) .....................................................................6.7
(b) ........................................................................6.8
ss. 312(a) ..................................................................7.1
(b) ........................................................................7.2
(c) ........................................................................7.2
ss. 313(a) ..................................................................7.3
(b)(2) .....................................................................7.3
(c) ........................................................................7.3
(d) ........................................................................7.3
ss. 314(a) ..................................................................7.4
(c)(1) ....................................................................10.2
(c)(2) ....................................................................10.2
(e) .......................................................................10.2
(f) .......................................................................10.2
ss. 316(a) (last sentence) .................................................10.1
(a)(1)(A) ............................................................5.2, 5.12
(a)(1)(B) .................................................................5.13
(b) ........................................................................5.8
ss. 317(a)(1) ...............................................................5.3
(a)(2) .....................................................................5.4
(b) .......................................................................10.3
ss. 318(a) .................................................................10.8
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions and Other Provisions of General Application
SECTION 1.1 DEFINITIONS.....................................................2
Act............................................................................2
Additional Amounts.............................................................2
Affiliate......................................................................2
Authenticating Agent...........................................................3
Authorized Newspaper...........................................................3
Authorized Officer.............................................................3
Bearer Security................................................................3
Board of Directors.............................................................3
Board Resolution...............................................................3
Business Day...................................................................3
Capital Stock..................................................................3
Capitalized Lease Obligation...................................................3
Commission.....................................................................4
Common Stock...................................................................4
Company........................................................................4
Company Request................................................................4
Consolidated Net Worth.........................................................4
Conversion Event...............................................................4
Corporate Trust Office.........................................................4
Corporation....................................................................4
Coupon.........................................................................5
Currency.......................................................................5
CUSIP number...................................................................5
Defaulted Interest.............................................................5
Designated Subsidiary..........................................................5
Dollar.........................................................................5
Event of Default...............................................................5
Foreign Currency...............................................................5
Government Obligations.........................................................5
Holder.........................................................................6
Indebtedness...................................................................6
Indenture......................................................................6
Independent Public Accountants.................................................6
Indexed Security...............................................................7
Interest.......................................................................7
Interest Payment Date..........................................................7
Judgment Currency..............................................................7
Legal Holidays.................................................................7
Lien...........................................................................7
Maturity.......................................................................7
New York Banking Day...........................................................7
Office.........................................................................7
Original Issue Discount Security...............................................7
Outstanding....................................................................8
Person.........................................................................9
i
<PAGE>
Place of Payment...............................................................9
Predecessor Security...........................................................9
Preferred Stock................................................................9
Redemption Date................................................................9
Redemption Price...............................................................9
Registered Security...........................................................10
Regular Record Date...........................................................10
Required Currency.............................................................10
Responsible Officer...........................................................10
Security......................................................................10
Security Register.............................................................10
Special Record Date...........................................................10
Stated Maturity...............................................................10
Subsidiary....................................................................10
Trust Indenture Act...........................................................10
Trustee.......................................................................11
United States.................................................................11
U.S. Depositor................................................................11
Vice President................................................................11
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS...........................11
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.........................12
SECTION 1.4. ACTS OF HOLDERS................................................12
SECTION 1.5. NOTICES, ETC. TO TRUSTEE AND COMPANY...........................14
SECTION 1.6. NOTICE TO HOLDERS OF SECURITIES; WAIVER........................15
SECTION 1.7. LANGUAGE OF NOTICES............................................16
SECTION 1.8. CONFLICT WITH TRUST INDENTURE ACT..............................16
SECTION 1.9. EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................16
SECTION 1.10. SUCCESSORS AND ASSIGNS.........................................16
SECTION 1.11. SEPARABILITY CLAUSE............................................16
SECTION 1.12. BENEFITS OF INDENTURE..........................................16
SECTION 1.13. GOVERNING LAW..................................................16
SECTION 1.14. LEGAL HOLIDAYS.................................................17
SECTION 1.15. COUNTERPARTS...................................................17
SECTION 1.16. JUDGMENT CURRENCY..............................................17
SECTION 1.17. NO SECURITY INTEREST CREATED...................................18
SECTION 1.18. LIMITATION ON INDIVIDUAL LIABILITY.............................18
ARTICLE 2
Securities Forms
SECTION 2.1. FORMS GENERALLY................................................19
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION................19
ii
<PAGE>
SECTION 2.3. SECURITIES IN GLOBAL FORM......................................20
ARTICLE 3
The Securities
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES...........................21
SECTION 3.2. CURRENCY; DENOMINATIONS........................................24
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.................25
SECTION 3.4. TEMPORARY SECURITIES...........................................27
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE............................27
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...............31
SECTION 3.7. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS
TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS PRESERVED...........32
SECTION 3.8. PERSONS DEEMED OWNERS..........................................33
SECTION 3.9. CANCELLATION...................................................34
SECTION 3.10. COMPUTATION OF INTEREST........................................34
ARTICLE 4
Satisfaction and Discharge of Indenture
SECTION 4.1. SATISFACTION AND DISCHARGE.....................................34
SECTION 4.2. DEFEASANCE AND COVENANT DEFEASANCE.............................36
SECTION 4.3. APPLICATION OF TRUST MONEY.....................................40
ARTICLE 5
Remedies
SECTION 5.1. EVENTS OF DEFAULT..............................................40
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.............42
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE........................................................43
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM...............................44
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS.....................................................45
SECTION 5.6. APPLICATION OF MONEY COLLECTED.................................45
SECTION 5.7. LIMITATIONS ON SUITS...........................................46
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND ANY
PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.......................46
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES.............................47
iii
<PAGE>
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.................................47
SECTION 5.11. DELAY OR OMISSION NOT WAIVER...................................47
SECTION 5.12. CONTROL BY HOLDERS OF SECURITIES...............................47
SECTION 5.13. WAIVER OF PAST DEFAULTS........................................48
SECTION 5.14. WAIVER OF USURY, STAY OR EXTENSION LAWS........................48
SECTION 5.15. UNDERTAKING FOR COSTS..........................................48
ARTICLE 6
The Trustee
SECTION 6.1. CERTAIN RIGHTS OF TRUSTEE......................................49
SECTION 6.2. NOTICE OF DEFAULTS.............................................50
SECTION 6.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.........50
SECTION 6.4. MAY HOLD SECURITIES............................................51
SECTION 6.5. MONEY HELD IN TRUST............................................51
SECTION 6.6. COMPENSATION AND REIMBURSEMENT.................................51
SECTION 6.7. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY........................52
SECTION 6.8. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............52
SECTION 6.9. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................54
SECTION 6.10. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.........................................55
SECTION 6.11. APPOINTMENT OF AUTHENTICATING AGENT............................55
ARTICLE 7
Holders Lists and Reports by Trustee and Company
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS...........................................57
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.........57
SECTION 7.3. REPORTS BY TRUSTEE.............................................58
SECTION 7.4. REPORTS BY COMPANY.............................................58
ARTICLE 8
Consolidation, Amalgamations, Merger and Sales
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS...........59
SECTION 8.2. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.......................60
iv
<PAGE>
ARTICLE 9
Supplemental Indentures
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.............60
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS................61
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES...........................63
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES..............................63
SECTION 9.5. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.............63
SECTION 9.6. CONFORMITY WITH TRUST INDENTURE ACT............................63
SECTION 9.7. NOTICE OF SUPPLEMENTAL INDENTURE...............................63
ARTICLE 10
Covenants
SECTION 10.1. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST
AND ADDITIONAL AMOUNTS.........................................64
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY................................64
SECTION 10.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............65
SECTION 10.4. ADDITIONAL AMOUNTS.............................................67
SECTION 10.5. LIMITATION ON LIENS ON STOCK OF DESIGNATED SUBSIDIARIES........69
SECTION 10.6. LIMITATION ON DISPOSITION OF STOCK OF
DESIGNATED SUBSIDIARIES........................................69
SECTION 10.7. CORPORATE EXISTENCE............................................69
SECTION 10.8. WAIVER OF CERTAIN COVENANTS....................................70
SECTION 10.9. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF
CERTAIN DEFAULTS...............................................70
ARTICLE 11
Redemption of Securities
SECTION 11.1. APPLICABILITY OF ARTICLE.......................................71
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................71
SECTION 11.3. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............71
SECTION 11.4. NOTICE OF REDEMPTION...........................................72
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE....................................73
SECTION 11.6. SECURITIES PAYABLE ON REDEMPTION DATE..........................73
SECTION 11.7. SECURITIES REDEEMED IN PART....................................74
v
<PAGE>
ARTICLE 12
Sinking Funds
SECTION 12.1. APPLICABILITY OF ARTICLE.......................................75
SECTION 12.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..........75
SECTION 12.3. REDEMPTION OF SECURITIES FOR SINKING FUND......................76
ARTICLE 13
Repayment at the Option of Holders
SECTION 13.1. APPLICABILITY OF ARTICLE.......................................76
ARTICLE 14
Securities in Foreign Currencies
SECTION 14.1. APPLICABILITY OF ARTICLE.......................................76
ARTICLE 15
Meetings of Holders of Securities
SECTION 15.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED......................77
SECTION 15.2. CALL, NOTICE AND PLACE OF MEETINGS.............................77
SECTION 15.3. PERSONS ENTITLED TO VOTE AT MEETINGS...........................78
SECTION 15.4. QUORUM; ACTION.................................................78
SECTION 15.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS........................................78
SECTION 15.6. COUNTING VOTES AND RECORDING ACTION OF MEETINGS................79
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INDENTURE, dated as of ______________, 1999 (the "Indenture"), between ACE
LIMITED, a company duly organized and existing under the laws of the Cayman
Islands (hereinafter called the "Company"), having its principal executive
office located at The ACE Building, 30 Woodbourne Avenue, Hamilton HM 08,
Bermuda, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking association
duly organized and existing under the laws of the United States of America
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
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:
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ARTICLE 1
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
hereby or 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.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have 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 Chief
Financial Officer, the Chief Investment Officer, the Chief Accounting Officer,
the General Counsel or the 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.
"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.
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"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.
"Consolidated Net Worth" in respect of any Person means the total of the
amounts shown on the balance sheet of such Person and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of
the end of the most recent fiscal quarter of such Person ending at least 45 days
prior to the taking of any action for the purpose of which the determination is
being made, as (i) the par or stated value of all outstanding Capital Stock of
such Person plus (ii) paid-in capital or capital surplus relating to such
Capital Stock plus (iii) any retained earnings or earned surplus, less any
accumulated deficit.
"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.
"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 One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article 8, 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.
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"Defaulted Interest" has the meaning specified in Section 3.7.
"Designated Subsidiary" means any present or future consolidated
Subsidiary of the Company, the Consolidated Net Worth of which constitutes at
least 5% of the Consolidated Net Worth of the Company.
"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.
"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 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 and credit of such government or 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, 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, 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.
"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
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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, (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 (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 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, includes such Additional
Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
"Legal Holidays" has the meaning specified in Section 1.14.
"Lien" has the meaning specified in Section 10.5.
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"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, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency," with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
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.
"Officer's Certificate" means a certificate signed by an Authorized
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 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 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) in trust or set
aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, 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;
(c) any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except to the
extent provided in Section 4.2;
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(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 bona fide 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 Common Stock of the Company or other
securities, 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 an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) 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 face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
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 amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in 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 Security are payable as provided in or pursuant to
this Indenture or such Security.
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"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.
"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 such Security.
"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 such Security.
"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 such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, 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.
"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.
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"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 such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"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) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.
"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.
"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 Security, 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.
"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, 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 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
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Company shall furnish to the Trustee an Officer's 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:
(1) a statement that the individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) 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.
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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 may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. 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 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 delivered to 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 signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument 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
and 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.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, 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 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.
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 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.
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(2) 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 with respect to any of the matters referred to in this Section.
(3) 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.
(4) 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 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.
(5) 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.
(6) 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
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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 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,
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 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
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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 Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7. 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 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.
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.
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Section 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security 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 1.13. 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 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, 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 be a Legal Holiday 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 with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, 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.
Section 1.15. 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 1.16. 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, except
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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 1.17. No Security Interest Created.
Subject to the provisions of Section 10.5, 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 1.18. 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, 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 1.19 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 judgement rendered in such proceeding. The Company also irrevocably
and unconditionally waives for the benefit of
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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 judgement, 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 ACE USA,
Inc., 1133 Avenue of the Americas, 32nd Floor, New York, New York 10036, 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 Peter N. Mear, General Counsel and
Secretary, ACE Limited, The ACE Building, 30 Woodbourne Avenue, Hamilton HM 08,
Bermuda) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by the
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 until
the appointment of a successor by the Company and such successor's acceptance of
such appointment. Upon such acceptance, the Company shall notify the Trustee of
the name and address of such successor. The Company further agrees for the
benefit of the Trustee and the Holders of the Securities 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 ACE USA, Inc. full force and effect so long as any of the
Securities or Coupons or the obligations of the Company hereunder shall be
outstanding. The Trustee shall not be obligated and shall have no responsibility
with respect to any failure by the Company to take any such action. Nothing
herein shall affect the right 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 2
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 a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture 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 this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
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
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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.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By__________________________________________
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities 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
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 but need not be
accompanied by or contained in an Officer's 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 this Indenture or any Securities, 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.
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
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(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 3
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.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto,
(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 Common Stock of the Company or
exchange for other securities 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 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 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);
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(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 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 and the Regular Record Date, if any, for the
interest payable on Registered Securities on any Interest Payment Date,
whether and under what circumstances Additional Amounts 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 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;
(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;
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(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
shares of Common Stock of the Company and/or exchangeable for other
securities, whether or not issued by the Company, 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 amount thereof, the portion of the
principal 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;
(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;
(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) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company 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;
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(19) 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 any covenants in addition to those
specified in Section 4.2(3) relating to the Securities of such series
which 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;
(20) 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;
(21) 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;
(22) 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
(23) 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 Officer's 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 Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's 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 Officer's
Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, 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, Registered Securities
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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.
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, Chief Financial Officer, Chief
Investment Officer or Chief Accounting Officer under its corporate seal
reproduced thereon and attested by its Secretary. Coupons shall be executed on
behalf of the Company by the Chief Financial Officer or Chief Accounting Officer
of the Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
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, 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 Officer's 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 relying upon,
(1) an Opinion 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 legally valid and
binding obligations of the Company, enforceable against the Company
in
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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; 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
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officer's Certificate stating that all conditions precedent
to the execution, authentication and delivery of such Securities and
Coupons, if any, appertaining thereto, have been complied with and that,
to the best knowledge of the Persons executing such certificate, 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 Officer's
Certificate at the time of issuance of each Security, but such opinion and
certificate, 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 that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture 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 this Indenture.
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
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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, 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, 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 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,
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. Unless otherwise provided in or
pursuant to this Indenture 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 Securities, 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
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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.
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, 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, 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 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
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 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
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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.
If provided in or pursuant to this Indenture with respect to Securities of
any series, 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 with respect to such series.
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, 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, 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 Officer's 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) 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
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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) 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 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 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, 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 11.3 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
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surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
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 and to 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 or the Trustee that such Security or Coupon has been acquired by a
bona fide 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,
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) 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, 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, 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, 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 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 may, in its discretion, 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 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
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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 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
Securities 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
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 shares of Common Stock of the Company or exchangeable for other securities,
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
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.
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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. 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 in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
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
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(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 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, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, 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, money in the Currency in which such Securities are payable in an
amount sufficient 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 on, and any Additional Amounts with respect to such
Securities and any Coupons appertaining thereto, 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 Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
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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 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
Section 10.4 (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 Common Stock of the Company
or other securities 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, 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 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
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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, 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 Common Stock of the
Company or exchange such Securities for other securities, (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 Section
10.4 (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 Common Stock of the Company
or exchange such Securities for other securities, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder 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 its obligations under Sections 10.5 and
10.6, and, to the extent specified pursuant to Section 3.1(19), any other
covenant applicable to such Securities, 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, 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, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other
covenant 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(4) or 5.1(9) or otherwise, as the case may be, 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:
(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
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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
of principal of (and premium, if any) and interest, if any, on 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, if any, on such Outstanding Securities and any Coupons
appertaining thereto at the Stated Maturity 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.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) 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 and, with respect to
defeasance only, at any time during the period ending on the 123rd
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under clause (2) of this
Section 4.2, 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.
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(e) In the case of an election under clause (3) of this
Section 4.2, 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) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that, after the 123rd day after the date of
deposit, all money and Government Obligations (or other property as
may be provided pursuant to Section 3.1) (including the proceeds
thereof) deposited or caused to be deposited with the Trustee (or
other qualifying trustee) pursuant to this clause (4) to be held in
trust will not be subject to any case or proceeding (whether
voluntary or involuntary) in respect of the Company under any
Federal or State bankruptcy, insolvency, reorganization or other
similar law, or any decree or order for relief in respect of the
Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an
Officer's Certificate and 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.
(5) Unless otherwise specified in or pursuant to this Indenture or
any Security, 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, 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.
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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) 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 and 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 5
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
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
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(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 deposit of any sinking fund payment when and as
due by the terms of a Security of such series; or
(4) 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, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) 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 (including an Event
of Default under any other series of Securities), whether such
Indebtedness now exists or shall hereafter be created or incurred, shall
happen and shall consist of default in the payment of more than
$50,000,000 in principal amount of such Indebtedness at the maturity
thereof (after giving effect to any applicable grace period) or shall
result in such Indebtedness in principal amount in excess of $50,000,000
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 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, a written notice specifying such
event of default and requiring the Company to cause such default to be
cured 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
(6) 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 $50,000,000, which is not stayed on appeal or is not
otherwise being appropriately contested in good faith; or
(7) 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
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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 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
(8) 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 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
(9) any other Event of Default provided in or pursuant to this
Indenture 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 (7) or (8)
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, or such lesser
amount as may be provided for in the Securities of such series, to 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 or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be
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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, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay
(a) all overdue installments of any 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.
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 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
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(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,
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 upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, 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 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 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 for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, 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 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 of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee,
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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 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
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
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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
and 3.7) 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 in or pursuant to this Indenture, 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.
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Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder 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 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 or to each and every Holder of a Security or a Coupon 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 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 may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, 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.
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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 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 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 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 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 to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or 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, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
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ARTICLE 6
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 (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;
(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 Officer's 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 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;
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(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(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; and
(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
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.
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, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment 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(5)
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 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
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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
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 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 (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 without negligence or bad faith on their part, 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 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
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collected by the Trustee as such, except funds held in trust for the payment of
principal of, and premium or 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. 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 and the Company.
(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
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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.
(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
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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 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 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 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
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rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or 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.
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, 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
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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 Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company 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 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:
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This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
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 Officer's 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 7
HOLDERS LISTS AND REPORTS BY TRUSTEE 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, 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 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.
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Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither 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 September 15 following the first issuance of Securities 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 Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) 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.
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
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
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(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 8
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 (whether or not affiliated with the Company), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company), and
the Company shall not permit any other Person (whether or not affiliated with
the Company) 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, 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 or the Cayman Islands, or any other
country which is on the date of this Indenture a member of the
Organization for Economic Cooperation and Development, 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 on and any 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 and treating
any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered
to the Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is
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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.
ARTICLE 9
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 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 form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 2.1 and 3.1; or
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(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 in any material respect; or
(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 in any material
respect; or
(10) to secure the Securities pursuant to Section 10.5 or otherwise;
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, 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
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(1) change the Stated Maturity of the principal of, or any premium
or installment of interest on or any Additional Amounts with respect to,
any Security, or reduce the principal amount thereof or the rate (or
modify the calculation of such rate) of 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 Section 10.4 (except as contemplated by
Section 8.1(1) and permitted by Section 9.1(1)), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the amount thereof provable in bankruptcy
pursuant to Section 5.4, 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 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 Section, Section 5.13 or
Section 10.8, 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
(4) make any change that adversely affects the right to convert or
exchange any Security into or for Common Stock of the Company or other
securities (whether or not issued by the Company), cash or property in
accordance with its terms.
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 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 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.
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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
Officer's 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.
Section 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company 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.
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ARTICLE 10
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 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 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 Stock Exchange of the United Kingdom and the Republic of Ireland 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 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, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise provided in or pursuant to this Indenture, 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 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
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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 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, 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.
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 with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or 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 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 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 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 or any premium,
interest or Additional Amounts so becoming due, such sum to be held in trust for
the benefit of
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the Persons entitled thereto, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee 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 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;
(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, any premium or 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.
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 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, may at the expense of the Company 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 and 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.
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Section 10.4. Additional Amounts.
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 the
Cayman Islands or Bermuda (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 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
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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; or
(4) any combination of items (1), (2) and (3);
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 hereby or pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding the payment of Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, at least 10 days prior to the first
Interest Payment Date with respect to a series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company shall furnish to the Trustee and the principal Paying Agent or
Paying Agents, if other than the Trustee, an Officer's Certificate instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and premium, if any, interest or any other amounts on the
Securities of such series shall be made to Holders of Securities of such series
or the Coupons appertaining thereto without withholding for or on account of any
tax, fee, duty, assessment or other governmental charge described in this
Section 10.4. If any such withholding shall be required, then such Officer's
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. The Company covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any loss, liability
or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officer's Certificate furnished pursuant to this Section 10.4.
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Section 10.5. Limitation on Liens on Stock of Designated Subsidiaries.
So long as any Securities are Outstanding, the Company will not, nor will
it permit any Subsidiary to, create, assume, incur, guarantee or otherwise
permit to exist any Indebtedness secured by any mortgage, pledge, lien, security
interest or other encumbrance (a "Lien") upon any shares of Capital Stock of any
Designated Subsidiary (whether such shares of stock are now owned or hereafter
acquired) without effectively providing concurrently that the Securities (and,
if the Company so elects, any other Indebtedness of the Company that is not
subordinate to the Securities and with respect to which the governing
instruments require, or pursuant to which the Company is otherwise obligated, to
provide such security) shall be secured equally and ratably with such
Indebtedness for at least the time period such other Indebtedness is so secured.
Section 10.6. Limitation on Disposition of Stock of Designated
Subsidiaries.
So long as any Securities are outstanding and except in a transaction
otherwise governed by this Indenture, the Company will not issue, sell, assign,
transfer or otherwise dispose of any shares of, securities convertible into, or
warrants, rights or options to subscribe for or purchase shares of, Capital
Stock (other than Preferred Stock having no voting rights of any kind) of any
Designated Subsidiary, and will not permit any Designated Subsidiary to issue
(other than to the Company) any shares (other than the director's qualifying
shares) of, or securities convertible into, or warrants, rights or options to
subscribe for or purchase shares of, Capital Stock (other than Preferred Stock
having no voting rights of any kind) of any Designated Subsidiary, if, after
giving effect to any such transaction and the issuance of the maximum number of
shares issuable upon the conversion or exercise of all such convertible
securities, warrants, rights or options, the Company would own, directly or
indirectly, less than 80% of the shares of Capital Stock of such Designated
Subsidiary (other than Preferred Stock having no voting rights of any kind);
provided, however, that (i) any issuance, sale, assignment, transfer or other
disposition permitted by the Company may only be made for at least a fair market
value consideration as determined by the Board of Directors pursuant to a Board
Resolution adopted in good faith and (ii) the foregoing shall not prohibit any
such issuance or disposition of securities if required by any law or any
regulation or order of any governmental or insurance regulatory authority.
Notwithstanding the foregoing, (i) the Company may merge or consolidate any
Designated Subsidiary into or with another direct or indirect Subsidiary of the
Company the shares of Capital Stock of which the Company owns at least 80% and
(ii) the Company may, subject to the provisions of Article 8, sell, assign,
transfer or otherwise dispose of the entire Capital Stock of any Designated
Subsidiary at one time for at least a fair market value consideration as
determined by the Board of Directors pursuant to a Board Resolution adopted in
good faith.
Section 10.7. 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 that of each of its Subsidiaries and their respective rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company or any of its Subsidiaries to preserve any such right or
franchise if the Company or any such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its business or
the business of such Subsidiary and that the loss thereof is not disadvantageous
in any material respect to any Holder.
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Section 10.8. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.5, 10.6 or 10.7 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, 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 10.9. 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 Officer's 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 10.9.
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ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company 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 of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
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
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock of the Company or exchanged for other securities 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.
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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:
(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,
and, if applicable, that interest thereon 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 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
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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
(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 to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, 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 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, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest 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 this Indenture or the Bearer Securities
of such series, 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
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or pursuant to this Indenture or the Registered Securities of such series,
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.
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.
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ARTICLE 12
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.
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 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 Officer's
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 Officer's 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 13
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 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.
ARTICLE 14
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
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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 Securities, 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 15
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 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.
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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.
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
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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 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 in triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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
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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 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.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] ACE LIMITED
Attest:
By ___________________________________
Name:
Title:
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Attest:
By ___________________________________
Name:
Title:
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<PAGE>
Exhibit 4.4
ACE LIMITED,
Issuer
To
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
---------------
INDENTURE
---------------
Dated as of _____________, 1999
Subordinated Debt Securities
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
ss. 310(a)(1) ...............................................................6.7
(a)(2) .....................................................................6.7
(b) ........................................................................6.8
ss. 312(a) ..................................................................7.1
(b) ........................................................................7.2
(c) ........................................................................7.2
ss. 313(a) ..................................................................7.3
(b)(2) .....................................................................7.3
(c) ........................................................................7.3
(d) ........................................................................7.3
ss. 314(a) ..................................................................7.4
(c)(1) .....................................................................1.2
(c)(2) .....................................................................1.2
(e) ........................................................................1.2
(f) ........................................................................1.2
ss. 316(a) (last sentence) ..................................................1.1
(a)(1)(A) ............................................................5.2, 5.12
(a)(1)(B) .................................................................5.13
(b) ........................................................................5.8
ss. 317(a)(1) ...............................................................5.3
(a)(2) .....................................................................5.4
(b) .......................................................................10.3
ss. 318(a) ..................................................................1.8
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions...................................................2
Act......................................................................2
Additional Amounts.......................................................2
Affiliate................................................................2
Authenticating Agent.....................................................3
Authorized Newspaper.....................................................3
Authorized Officer.......................................................3
Bearer Security..........................................................3
Board of Directors.......................................................3
Board Resolution.........................................................3
Business Day.............................................................3
Capital Stock............................................................3
Capitalized Lease Obligation.............................................3
Commission...............................................................4
Common Stock.............................................................4
Company..................................................................4
Company Request..........................................................4
Company Order............................................................4
Conversion Event.........................................................4
Corporate Trust Office...................................................4
Corporation..............................................................4
Coupon...................................................................4
Currency.................................................................4
CUSIP number.............................................................4
Defaulted Interest.......................................................5
Dollars and $............................................................5
Event of Default.........................................................5
Foreign Currency.........................................................5
Government Obligations...................................................5
Holder...................................................................5
Indebtedness.............................................................5
Indenture................................................................6
Independent Public Accountants...........................................6
Indexed Security.........................................................6
Interest.................................................................6
Interest Payment Date....................................................6
Judgment Currency........................................................6
Legal Holidays...........................................................7
Lien.....................................................................7
Maturity.................................................................7
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New York Banking Day.....................................................7
Office" or "Agency"......................................................7
Officer's Certificate....................................................7
Opinion of Counsel.......................................................7
Original Issue Discount Security.........................................7
Outstanding..............................................................7
Paying Agent.............................................................9
Person...................................................................9
Place of Payment.........................................................9
Predecessor Security.....................................................9
Preferred Stock..........................................................9
Redemption Date..........................................................9
Redemption Price.........................................................9
Registered Security......................................................9
Regular Record Date......................................................9
Required Currency........................................................9
Responsible Officer......................................................9
Security or Securities..................................................10
Security Register.......................................................10
Security Registrar......................................................10
Senior Indebtedness.....................................................10
Special Record Date.....................................................10
Stated Maturity.........................................................10
Subsidiary..............................................................10
Trust Indenture Act.....................................................10
Trustee.................................................................11
United States...........................................................11
Depository..............................................................11
U.S. Depository.........................................................11
Vice President..........................................................11
Section 1.2. Compliance Certificates and Opinions.........................11
Section 1.3. Form of Documents Delivered to Trustee.......................12
Section 1.4. Acts of Holders..............................................12
Section 1.5. Notices, etc. to Trustee and Company.........................14
Section 1.6. Notice to Holders of Securities; Waiver......................15
Section 1.7. Language of Notices..........................................16
Section 1.8. Conflict with Trust Indenture Act............................16
Section 1.9. Effect of Headings and Table of Contents.....................16
Section 1.10. Successors and Assigns.......................................16
Section 1.11. Separability Clause..........................................16
Section 1.12. Benefits of Indenture........................................16
Section 1.13. Governing Law................................................16
Section 1.14. Legal Holidays...............................................16
Section 1.15. Counterparts.................................................17
Section 1.16. Judgment Currency............................................17
Section 1.17. No Security Interest Created.................................17
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<PAGE>
Section 1.18. Limitation on Individual Liability...........................18
Section 1.19. Submission to Jurisdiction...................................18
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally..............................................19
Section 2.2. Form of Trustee's Certificate of Authentication..............19
Section 2.3. Securities in Global Form....................................20
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.........................21
Section 3.2. Currency; Denominations......................................25
Section 3.3. Execution, Authentication, Delivery and Dating...............25
Section 3.4. Temporary Securities.........................................27
Section 3.5. Registration, Transfer and Exchange..........................27
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.............31
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved........32
Section 3.8. Persons Deemed Owners........................................33
Section 3.9. Cancellation.................................................34
Section 3.10. Computation of Interest......................................34
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge...................................34
Section 4.2. Defeasance and Covenant Defeasance...........................36
Section 4.3. Application of Trust Money...................................40
ARTICLE 5
REMEDIES
Section 5.1. Events of Default............................................40
Section 5.2. Acceleration of Maturity; Rescission and Annulment...........42
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................43
Section 5.4. Trustee May File Proofs of Claim.............................44
Section 5.5. Trustee May Enforce Claims without Possession of Securities
or Coupons...................................................45
Section 5.6. Application of Money Collected...............................45
Section 5.7. Limitations on Suits.........................................45
Section 5.8. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.................46
Section 5.9. Restoration of Rights and Remedies...........................46
Section 5.10. Rights and Remedies Cumulative...............................46
Section 5.11. Delay or Omission Not Waiver.................................47
Section 5.12. Control by Holders of Securities.............................47
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<PAGE>
Section 5.13. Waiver of Past Defaults......................................47
Section 5.14. Waiver of Usury, Stay or Extension Laws......................47
Section 5.15. Undertaking for Costs........................................48
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee....................................48
Section 6.2. Notice of Defaults...........................................50
Section 6.3. Not Responsible for Recitals or Issuance of Securities.......50
Section 6.4. May Hold Securities..........................................50
Section 6.5. Money Held in Trust..........................................50
Section 6.6. Compensation and Reimbursement...............................51
Section 6.7. Corporate Trustee Required; Eligibility......................51
Section 6.8. Resignation and Removal; Appointment of Successor............52
Section 6.9. Acceptance of Appointment by Successor.......................53
Section 6.10. Merger, Conversion, Consolidation or Succession to Business..54
Section 6.11. Appointment of Authenticating Agent..........................55
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders....56
Section 7.2. Preservation of Information; Communications to Holders.......57
Section 7.3. Reports by Trustee...........................................57
Section 7.4. Reports by Company...........................................57
ARTICLE 8
CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.........58
Section 8.2. Successor Person Substituted for Company.....................59
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders...........59
Section 9.2. Supplemental Indentures with Consent of Holder...s...........61
Section 9.3. Execution of Supplemental Indentures.........................62
Section 9.4. Effect of Supplemental Indentures............................62
Section 9.5. Reference in Securities to Supplemental Indentures...........62
Section 9.6. Conformity with Trust Indenture Act..........................62
Section 9.7. Effect on Senior Indebtedness................................62
Section 9.8. Notice of Supplemental Indenture.............................63
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional
Amounts......................................................63
Section 10.2. Maintenance of Office or Agency..............................63
iv
<PAGE>
Section 10.3. Money for Securities Payments to Be Held in Trust............64
Section 10.4. Additional Amounts...........................................66
Section 10.5. Corporate Existence..........................................68
Section 10.6. Waiver of Certain Covenants..................................68
Section 10.7. Company Statement as to Compliance; Notice of Certain
Defaults.....................................................68
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.....................................69
Section 11.2. Election to Redeem; Notice to Trustee........................69
Section 11.3. Selection by Trustee of Securities to be Redeemed............69
Section 11.4. Notice of Redemption.........................................70
Section 11.5. Deposit of Redemption Price..................................71
Section 11.6. Securities Payable on Redemption Date........................71
Section 11.7. Securities Redeemed in Part..................................72
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.....................................73
Section 12.2. Satisfaction of Sinking Fund Payments with Securities........73
Section 12.3. Redemption of Securities for Sinking Fund....................74
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.....................................74
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.....................................74
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called....................75
Section 15.2. Call, Notice and Place of Meetings...........................75
Section 15.3. Persons Entitled to Vote at Meetings.........................76
Section 15.4. Quorum; Action...............................................76
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings..................................................76
Section 15.6. Counting Votes and Recording Action of Meetings..............77
ARTICLE 16
SUBORDINATION OF SECURITIES
Section 16.1. Agreement to Subordinate.....................................78
Section 16.2. Default on Senior Indebtedness...............................78
Section 16.3. Liquidation; Dissolution; Bankruptcy.........................79
Section 16.4. Subrogation..................................................80
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Section 16.5. Trustee to Effectuate Subordination..........................81
Section 16.6. Notice by the Company........................................81
Section 16.7. Rights of the Trustee; Holders of Senior Indebtedness........82
Section 16.8. Subordination May Not Be Impaired............................82
vi
<PAGE>
INDENTURE, dated as of ______________, 1999 (the "Indenture"), between ACE
LIMITED, a company duly organized and existing under the laws of the Cayman
Islands (hereinafter called the "Company"), having its principal executive
office located at The ACE Building, 30 Woodbourne Avenue, Hamilton HM 08,
Bermuda, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking association
duly organized and existing under the laws of the United States of America
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
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"), 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:
1
<PAGE>
ARTICLE 1
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
hereby or 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.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"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.
2
<PAGE>
"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 Chief
Financial Officer, the Chief Investment Officer, the Chief Accounting Officer,
the General Counsel or the 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.
"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 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
3
<PAGE>
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.
"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.
"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 One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article 8, 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.
"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.
"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
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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 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 and credit of such government or 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, 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, 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.
"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; (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 (vii) any
amendments, modifications, refundings, renewals or
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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 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, includes such Additional
Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
"Legal Holidays" has the meaning specified in Section 1.14.
"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, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
maintained or designated for such Securities
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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.
"Officer's Certificate" means a certificate signed by an Authorized
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 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 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) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities and any Coupons appertaining thereto, 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;
c. any such Security with respect to which the Company 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 bona fide
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 Common Stock of the Company or other
securities, if the
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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 an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) 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 face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
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 amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in 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 Security are payable as provided in or pursuant to
this Indenture or such Security.
"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
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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.
"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 such Security.
"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 such Security.
"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 such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, 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" 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 an Affiliate of the Company, (d)
interest accruing after the filing of a petition initiating any proceeding
referred to in Section 5.1(7) and 5.1(8)
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unless such interest is an allowed claim enforceable against the Company in a
proceeding under federal or state bankruptcy laws and (e) trade accounts
payable.
"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 such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"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) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.
"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.
"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 Security, 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.
"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, 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.
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"Vice President," when used with respect to 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
Officer's 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:
(1) a statement that the individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) 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
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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 may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. 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 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 delivered to 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 signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument 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 and 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.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, 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 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.
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 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,
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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.
(2) 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
with respect to any of the matters referred to in this Section.
(3) 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.
(4) 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 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.
(5) 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.
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(6) 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 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,
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 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
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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 Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7. 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 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.
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.
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Section 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto and holders of Senior
Indebtedness, any Security 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 1.13. 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 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, 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 be a Legal Holiday 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 with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, 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.
Section 1.15. 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 1.16. 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
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entered in accordance with clause (a)), in any currency other than the Required
Currency, 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 1.17. 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 1.18. 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, 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 1.19. 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 judgement rendered
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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 judgement, 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 ACE
USA, Inc., 1133 Avenue of the Americas, 32nd Floor, New York, New York 10036 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 Peter N. Mear, General Counsel and
Secretary, ACE Limited, The ACE Building, 30 Woodbourne Avenue, Hamilton HM 08,
Bermuda) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by the
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 until
the appointment of a successor by the Company and such successor's acceptance of
such appointment. Upon such acceptance, the Company shall notify the Trustee of
the name and address of such successor. The Company further agrees for the
benefit of the Trustee and the Holders of the Securities 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 ACE USA, Inc. in full force and effect so long as any of the
Securities or Coupons or the obligations of the Company hereunder shall be
outstanding. The Trustee shall not be obligated and shall have no responsibility
with respect to any failure by the Company to take any such action. Nothing
herein shall affect the right 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 2
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 a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture 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 this Indenture or any
Securities, 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.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_________________________________________
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities 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
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 but need not be
accompanied by or contained in an Officer's 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 this Indenture or any Securities, 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 3
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 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 or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto,
(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 Common Stock of the Company or
exchange for other securities 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 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 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 and the Regular Record Date, if any, for the
interest payable on Registered Securities on any Interest Payment Date,
whether and under what circumstances Additional Amounts 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 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;
(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;
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(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
shares of Common Stock of the Company and/or exchangeable for other
securities, whether or not issued by the Company, 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 amount thereof, the portion of the
principal 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;
(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;
(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
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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
shall be senior to or be subordinated to other series of Securities or
other Indebtedness of the Company 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 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 any covenants in addition to those
specified in Section 4.2(3) relating to the Securities of such series
which 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) 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;
(22) 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;
(23) 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
(24) 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 Officer's 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 Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's Certificate or supplemental indenture. All
Securities of any one
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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 Officer's
Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, 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, 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.
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, Chief Financial Officer, Chief
Investment Officer or Chief Accounting Officer under its corporate seal
reproduced thereon and attested by its Secretary. Coupons shall be executed on
behalf of the Company by the Chief Financial Officer or Chief Accounting Officer
of the Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
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, 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 Officer's 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 relying upon,
(1) an Opinion of Counsel to the effect that:
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(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 legally 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; 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
(d) this Indenture has been qualified under the Trust Indenture Act;
and
(2) an Officer's Certificate stating that all conditions precedent to the
execution, authentication and delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with and that, to the best knowledge of
the Persons executing such certificate, 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 Officer's
Certificate at the time of issuance of each Security, but such opinion and
certificate, 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 that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture 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.
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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 this Indenture.
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, 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, 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 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,
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. Unless otherwise provided in or
pursuant to this Indenture 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.
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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 Securities, 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.
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, 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, 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 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
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 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
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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.
If provided in or pursuant to this Indenture with respect to Securities of
any series, 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 with respect to such series.
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, 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, 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 Officer's 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
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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) 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) 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 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 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.
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Except as otherwise provided in or pursuant to this Indenture, 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 11.3 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.
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 and to 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 or the Trustee that such Security or Coupon has been acquired by a
bona fide 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,
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.
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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) 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, 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.
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, 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, 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 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
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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 may, in its discretion, 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 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 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
Securities 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
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 shares of Common Stock of the Company or exchangeable for other securities,
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.
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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
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. 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 in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE 4
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
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, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, 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, money in the Currency in which such Securities are payable in an
amount sufficient 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 on, and any Additional Amounts with respect to such
Securities and any Coupons appertaining thereto, 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;
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(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 Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for 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 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
Section 10.4 (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 Common Stock of the Company
or other securities 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,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 4.2 and the other
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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 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, 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 Common Stock of the Company or
exchange such Securities for other securities, (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 Section 10.4 (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 Common
Stock of the Company or exchange such Securities for other securities, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder 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 its obligations under any covenant applicable to such Securities
specified pursuant to Section 3.1(20), 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, 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, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant 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(4) or 5.1(9) or otherwise, as the case may be, 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:
(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
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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 of principal of (and premium, if any) and
interest, if any, on 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, if any, on such
Outstanding Securities and any Coupons appertaining thereto at the Stated
Maturity 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.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) 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 and, with respect to defeasance only, at any
time during the period ending on the 123rd day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2,
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.
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(e) In the case of an election under clause (3) of this Section 4.2,
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) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, after the 123rd day after the date of deposit,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited or
caused to be deposited with the Trustee (or other qualifying trustee)
pursuant to this clause (4) to be held in trust will not be subject to any
case or proceeding (whether voluntary or involuntary) in respect of the
Company under any Federal or State bankruptcy, insolvency, reorganization
or other similar law, or any decree or order for relief in respect of the
Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an Officer's
Certificate and 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.
(5) Unless otherwise specified in or pursuant to this Indenture or any
Security, 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, 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,
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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) 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 and 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 5
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
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such series,
or any Additional Amounts payable with respect thereto, when such interest
becomes or such Additional Amounts become due and payable, and continuance of
such default for a period of 30 days; or
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(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 deposit of any sinking fund payment when and as due by
the terms of a Security of such series; or
(4) 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, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) 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 (including an Event of Default under
any other series of Securities), whether such Indebtedness now exists or shall
hereafter be created or incurred, shall happen and shall consist of default in
the payment of more than $50,000,000 in principal amount of such Indebtedness at
the maturity thereof (after giving effect to any applicable grace period) or
shall result in such Indebtedness in principal amount in excess of $50,000,000
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 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, a written notice
specifying such event of default and requiring the Company to cause such default
to be cured 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
(6) 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 $50,000,000, which is not stayed on appeal or is not otherwise being
appropriately contested in good faith; or
(7) 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 to be insolvent, or
approving a petition seeking reorganization (other than a reorganization
under a foreign law that does
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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
(8) 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 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
(9) any other Event of Default provided in or pursuant to this Indenture
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 (7) or (8)
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, or such lesser
amount as may be provided for in the Securities of such series, to 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 or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such 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
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principal amount of the Outstanding Securities of such series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any 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.
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 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,
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 upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, 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
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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 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 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 for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, 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 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 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
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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 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
Securities and Coupons for principal and any premium, 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
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(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
and 3.7) 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 in or pursuant to this Indenture, 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.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder 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 shall continue as though no such proceeding had
been instituted.
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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 or to each and every Holder of a Security or a Coupon 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 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 may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, 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 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 on,
or any Additional Amounts with respect to, any Security of such series or
any Coupons appertaining thereto, or
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(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 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 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 to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or 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, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
ARTICLE 6
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,
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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 (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;
(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 Officer's 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 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 or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(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;
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(9) the Authenticating Agent, Paying Agent, and Security Registrar
shall have the same protections as the Trustee set forth hereunder; and
(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
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.
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, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment 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(5)
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 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
Company, in its individual or any other
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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 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 (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 without negligence or bad faith on their part, 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 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 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.
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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. 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 and the Company.
(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,
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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.
(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 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,
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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
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 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
request of the Company 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.
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(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.
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, 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 Company. The Trustee may at any time terminate
the agency of an
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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 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 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.
THE FIRST NATIONAL BANK OF CHICAGO,
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 Officer's 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.
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ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE 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, 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 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 neither 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 September 15 following the first issuance of Securities 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 Section 313(a) of
the Trust Indenture Act at the times specified therein.
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(3) 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.
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 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 8
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 (whether or not affiliated with the Company), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company), and
the Company shall not permit any other Person (whether or not affiliated with
the Company) 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
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entirety to any Person, 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 or the Cayman Islands, or any other country
which is on the date of this Indenture a member of the Organization of Economic
Cooperation and Development, 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 on and any
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 and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default or event which,
after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to the
Trustee an Officer's 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.
ARTICLE 9
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
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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 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 form 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 in
any material respect; or
(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 in any material respect; or
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(10) to secure the Securities; 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, 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 on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of 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 Section 10.4 (except as contemplated by Section 8.1(1) and permitted
by Section 9.1(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 or the amount
thereof provable in bankruptcy pursuant to Section 5.4, 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 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 a manner adverse to Holders of Securities, or
(4) modify any of the provisions of this Section, Section 5.13 or Section
10.6, except to increase any such percentage or to provide that certain other
provisions of this Indenture
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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 Common Stock of the Company or other
securities (whether or not issued by the Company), cash or property in
accordance with its terms.
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 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 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
Officer's 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.
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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.
Section 9.7. Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify or eliminate
the provisions of Article 16 in any manner which might terminate or impair the
subordination of the Securities of any series to Senior Indebtedness with
respect to such series without the prior written consent of the holders of such
Senior Indebtedness.
Section 9.8. Notice of Supplemental Indenture.
Promptly after the execution by the Company 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 10
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 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 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
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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 Stock Exchange of the United Kingdom and the Republic
of Ireland 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 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, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, 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 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 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, 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
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Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one exchange rate agent.
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 with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or 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 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 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 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 or any premium,
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 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 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;
(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, any premium or 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.
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.
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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 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, may at the expense of the Company 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 and 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.
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 the
Cayman Islands or Bermuda (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 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,
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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; or
(4) any combination of items (1), (2) and (3);
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 hereby or pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding the payment of Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, at least 10 days prior to the first
Interest Payment Date with respect to a series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the
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below-mentioned Officer's Certificate, the Company shall furnish to the Trustee
and the principal Paying Agent or Paying Agents, if other than the Trustee, an
Officer's Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and premium, if any, interest or any
other amounts on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto without
withholding for or on account of any tax, fee, duty, assessment or other
governmental charge described in this Section 10.4. If any such withholding
shall be required, then such Officer's 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. The Company covenants to indemnify the Trustee and any Paying Agent for,
and to hold them harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officer's Certificate furnished pursuant to this Section 10.4.
Section 10.5. 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 that of each of its Subsidiaries and their respective rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company or any of its Subsidiaries to preserve any such right or
franchise if the Company or any such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its business or
the business of such Subsidiary and that the loss thereof is not disadvantageous
in any material respect to any Holder.
Section 10.6. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 10.5 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, 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 10.7. 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 Officer's 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
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(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.
(c) 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.
(d) 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 10.7.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company 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 of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
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
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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
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock of the Company or exchanged for other securities 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:
(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,
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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, and, if
applicable, that interest thereon 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 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
(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 to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, 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,
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unless otherwise specified pursuant to Section 3.1 or in the Securities of such
series) any accrued 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, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest 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 this Indenture or the Bearer Securities
of such series, 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
this Indenture or the Registered Securities of such series, 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.
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
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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.
ARTICLE 12
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.
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
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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 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.
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 Officer's
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 Officer's 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 13
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 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
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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.
ARTICLE 14
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 Securities, 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 15
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
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publication of the notice of such meeting within 21 days after receipt of such
request (whichever shall be required 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 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
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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 in triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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 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 16
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 Officer's 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
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, be subordinate in right of payment to the
prior payment in full of all 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.
Section 16.2. Default on 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
Senior Indebtedness with respect to the Securities of any series, or in the
event that the maturity of any Senior Indebtedness with respect to the
Securities of any series has been accelerated 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 on, or any Additional Amounts with respect to, the Securities of such
series.
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
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payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of such 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 Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of such 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 dissolution, winding-up, liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all 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 on, or
Additional Amounts with respect to, the Securities of such series; and upon any
such dissolution, winding-up, liquidation or reorganization, or in any such
bankruptcy, insolvency, receivership or other proceeding, 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
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 Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of such 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 Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such 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 Senior Indebtedness, before any payment or distribution is made
to the Holders of the Securities of such series or to the Trustee.
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 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 Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such 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 Senior Indebtedness remaining unpaid to
the extent necessary to pay such 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 Senior Indebtedness.
78
<PAGE>
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 Senior Indebtedness
with respect to the Securities of such series that may at the time be
outstanding, provided that (i) such 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 Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation 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
Article 8 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 Article 8 of this Indenture.
Nothing in Section 16.2 or in this Section 16.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6 of this Indenture.
Section 16.4. Subrogation.
Subject to the payment in full of all 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 Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until the
principal of, any premium and 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 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 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 Senior Indebtedness, and the Holders of the
Securities of such series, be deemed to be a payment by the Company to or on
account of such 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 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 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 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 Senior Indebtedness,
nor shall anything herein or therein prevent the Trustee or the Holder of any
79
<PAGE>
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 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 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
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 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 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.
80
<PAGE>
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 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 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 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 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 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 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.
Section 16.7. Rights of the Trustee; Holders of 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 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 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 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 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 Senior Indebtedness and, subject to the
provisions of Article 6 of this Indenture, the Trustee shall not be liable to
any holder of such 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 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.
81
<PAGE>
Section 16.8. Subordination May Not Be Impaired.
No right of any present or future holder of any 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 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 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
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
* * * * *
82
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] ACE LIMITED
Attest:
By _________________________________________
Name:
Title:
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Attest:
By _________________________________________
Name:
Title:
83
<PAGE>
Exhibit 4.5
ACE INA HOLDINGS INC.,
Issuer
and
ACE LIMITED,
Guarantor
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
---------------
INDENTURE
---------------
Dated as of ___________, 1999
Senior Debt Securities
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
----------- -----------------
ss.310(a)(1)................................................................6.7
(a)(2).....................................................................6.7
(b)........................................................................6.8
ss.312(a)...................................................................7.1
(b)........................................................................7.2
(c)........................................................................7.2
ss.313(a)...................................................................7.3
(b)(2).....................................................................7.3
(c)........................................................................7.3
(d)........................................................................7.3
ss.314(a)...................................................................7.4
(c)(1).....................................................................1.2
(c)(2).....................................................................1.2
(e)........................................................................1.2
(f)........................................................................1.2
ss.316(a) (last sentence)...................................................1.1
(a)(1)(A)............................................................5.2, 5.12
(a)(1)(B).................................................................5.13
(b)........................................................................5.8
ss.317(a)(1)................................................................5.3
(a)(2).....................................................................5.4
(b).......................................................................10.3
ss.318(a)..................................................................10.8
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions.....................................................2
Act......................................................................2
Additional Amounts.......................................................2
Affiliate................................................................2
Authenticating Agent.....................................................3
Authorized Newspaper.....................................................3
Authorized Officer.......................................................3
Bearer Security..........................................................3
Board of Directors.......................................................3
Board Resolution.........................................................3
Business Day.............................................................3
Capital Stock............................................................3
Capitalized Lease Obligation.............................................4
Commission...............................................................4
Common Stock.............................................................4
Company..................................................................4
Company Request..........................................................4
Consolidated Net Worth...................................................4
Conversion Event.........................................................4
Corporate Trust Office...................................................4
Corporation..............................................................5
Coupon...................................................................5
Currency.................................................................5
CUSIP number.............................................................5
Defaulted Interest.......................................................5
Designated Subsidiary....................................................5
Dollar...................................................................5
Event of Default.........................................................5
Foreign Currency.........................................................5
Government Obligations...................................................5
Indebtedness.............................................................7
Indenture................................................................7
Independent Public Accountants...........................................7
Indexed Security.........................................................7
Interest.................................................................8
Interest Payment Date....................................................8
Judgment Currency........................................................8
Legal Holidays...........................................................8
Lien.....................................................................8
Maturity.................................................................8
New York Banking Day.....................................................8
Office...................................................................8
Original Issue Discount Security.........................................8
Outstanding..............................................................9
Person..................................................................10
Place of Payment........................................................10
Predecessor Security....................................................10
Preferred Stock.........................................................10
Redemption Date.........................................................11
Redemption Price........................................................11
Registered Security.....................................................11
Regular Record Date.....................................................11
Required Currency.......................................................11
i
<PAGE>
Responsible Officer.....................................................11
Security................................................................11
Security Register.......................................................11
Special Record Date.....................................................11
Stated Maturity.........................................................11
Subsidiary..............................................................12
Trust Indenture Act.....................................................12
Trustee.................................................................12
United States...........................................................12
United States Alien.....................................................12
U.S. Depositor..........................................................12
Vice President..........................................................13
Section 1.2. Compliance Certificates and Opinions..........................13
Section 1.3. Form of Documents Delivered to Trustee........................13
Section 1.4. Acts of Holders...............................................14
Section 1.5. Notices, etc. to Trustee, Company and Guarantor...............16
Section 1.6. Notice to Holders of Securities; Waiver.......................17
Section 1.7. Language of Notices...........................................18
Section 1.8. Conflict with Trust Indenture Act.............................18
Section 1.9. Effect of Headings and Table of Contents......................18
Section 1.10. Successors and Assigns........................................18
Section 1.11. Separability Clause...........................................18
Section 1.12. Benefits of Indenture.........................................18
Section 1.13. Governing Law.................................................18
Section 1.14. Legal Holidays................................................19
Section 1.15. Counterparts..................................................19
Section 1.16. Judgment Currency.............................................19
Section 1.17. No Security Interest Created..................................20
Section 1.18. Limitation on Individual Liability............................20
Section 1.19. Submission to Jurisdiction....................................20
ARTICLE 2
Securities Forms
Section 2.1. Forms Generally................................................21
Section 2.2. Form of Trustee's Certificate of Authentication................22
Section 2.3. Securities in Global Form......................................22
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series...........................23
ii
<PAGE>
Section 3.2. Currency; Denominations........................................27
Section 3.3. Execution, Authentication, Delivery and Dating.................27
Section 3.4. Temporary Securities...........................................29
Section 3.5. Registration, Transfer and Exchange............................30
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities...............33
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved...........35
Section 3.8. Persons Deemed Owners..........................................36
Section 3.9. Cancellation...................................................37
Section 3.10. Computation of Interest.......................................37
ARTICLE 4
Satisfaction and Discharge of Indenture
Section 4.1. Satisfaction and Discharge.....................................38
Section 4.2. Defeasance and Covenant Defeasance.............................39
Section 4.3. Application of Trust Money.....................................44
ARTICLE 5
Remedies
Section 5.1. Events of Default..............................................44
Section 5.2. Acceleration of Maturity; Rescission and Annulment.............46
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................47
Section 5.4. Trustee May File Proofs of Claim...............................48
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons .........................................49
Section 5.6. Application of Money Collected.................................49
Section 5.7. Limitations on Suits...........................................50
Section 5.8. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional ounts.....................51
Section 5.9. Restoration of Rights and Remedies ............................51
Section 5.10. Rights and Remedies Cumulative................................51
Section 5.11. Delay or Omission Not Waiver..................................51
Section 5.12. Control by Holders of Securities..............................52
Section 5.13. Waiver of Past Defaults.......................................52
Section 5.14. Waiver of Usury, Stay or Extension Laws ......................52
Section 5.15. Undertaking for Costs.........................................53
iii
<PAGE>
ARTICLE 6
The Trustee
Section 6.1. Certain Rights of Trustee......................................53
Section 6.2. Notice of Defaults.............................................55
Section 6.3. Not Responsible for Recitals or Issuance of Securities.........55
Section 6.4. May Hold Securities............................................55
Section 6.5. Money Held in Trust............................................55
Section 6.6. Compensation and Reimbursement.................................56
Section 6.7. Corporate Trustee Required; Eligibility........................57
Section 6.8. Resignation and Removal; Appointment of Successor..............57
Section 6.9. Acceptance of Appointment by Successor.........................59
Section 6.10. Merger, Conversion, Consolidation or Succession to Business...60
Section 6.11. Appointment of Authenticating Agent...........................60
ARTICLE 7
Holders Lists and Reports by Trustee, Guarantor and Company
Section 7.1. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders ..........................................62
Section 7.2. Preservation of Information; Communications to Holders ........63
Section 7.3. Reports by Trustee ............................................63
Section 7.4. Reports by Company and Guarantor ..............................63
ARTICLE 8
Consolidation, Amalgamations, Merger and Sales
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms...........64
Section 8.2. Successor Person Substituted for Company ......................65
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms.........65
Section 8.4. Successor Person Substituted for Guarantor.....................66
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures without Consent of Holders ............67
Section 9.2. Supplemental Indentures with Consent of Holders ...............68
Section 9.3. Execution of Supplemental Indentures ..........................69
Section 9.4. Effect of Supplemental Indentures..............................70
Section 9.5. Reference in Securities to Supplemental Indentures.............70
Section 9.6. Conformity with Trust Indenture Act............................70
iv
<PAGE>
Section 9.7. Notice of Supplemental Indenture...............................70
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts ...........................................70
Section 10.2. Maintenance of Office or Agency...............................71
Section 10.3. Money for Securities Payments to Be Held in Trust.............72
Section 10.4. Additional Amounts............................................74
Section 10.5. Limitation on Liens on Stock of Designated Subsidiaries.......74
Section 10.6. Limitation on Disposition of Stock of Designated Subsidiaries.75
Section 10.7. Corporate Existence...........................................75
Section 10.8. Waiver of Certain Covenants...................................76
Section 10.9. Company Statement as to Compliance; Notice of
Certain Defaults .............................................76
Section 10.10. Guarantor Statement as to Compliance; Notice of
Certain Defaults ............................................77
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article......................................77
Section 11.2. Election to Redeem; Notice to Trustee.........................77
Section 11.3. Selection by Trustee of Securities to be Redeemed.............78
Section 11.4. Notice of Redemption..........................................78
Section 11.5. Deposit of Redemption Price...................................80
Section 11.6. Securities Payable on Redemption Date.........................80
Section 11.7. Securities Redeemed in Part...................................81
ARTICLE 12
Sinking Funds
Section 12.1. Applicability of Article......................................82
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.........82
Section 12.3. Redemption of Securities for Sinking Fund.....................83
ARTICLE 13
Repayment at the Option of Holders
Section 13.1. Applicability of Article......................................83
ARTICLE 14
Securities in Foreign Currencies
Section 14.1. Applicability of Article......................................84
v
<PAGE>
ARTICLE 15
Meetings of Holders of Securities
Section 15.1. Purposes for Which Meetings May Be Called.....................84
Section 15.2. Call, Notice and Place of Meetings............................84
Section 15.3. Persons Entitled to Vote at Meetings..........................85
Section 15.4. Quorum; Action................................................85
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings ..................................................86
Section 15.6. Counting Votes and Recording Action of Meetings...............87
ARTICLE 16
GUARANTEE AND INDEMNITY
Section 16.1. The Guarantee.................................................87
Section 16.2. Net Payments..................................................88
Section 16.3. Guarantee Unconditional, etc..................................90
Section 16.4. Reinstatement.................................................90
Section 16.5. Subrogation...................................................90
Section 16.6. Indemnity.....................................................91
vi
<PAGE>
INDENTURE, dated as of ___________, 1999 (the "Indenture"), among ACE INA
HOLDINGS INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office located at c/o ACE USA Inc., Six Concourse Parkway, Suite 2500,
Atlanta, Georgia 30328, ACE LIMITED, a company duly organized and existing under
the laws of the Cayman Islands (hereinafter called the "Guarantor"), having its
principal executive office at The ACE Building, 30 Woodbourne Avenue, Hamilton
HM 08, Bermuda, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association duly organized and existing under the laws of the United States of
America (hereinafter called the "Trustee"), having its Corporate Trust Office
located at One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
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.
For value received, the Guarantor has duly authorized the execution and
delivery of this Indenture to provide for the issuance of the Guarantee and the
indemnity provided for herein. All things necessary to make this Indenture a
valid agreement of the Guarantor, 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:
<PAGE>
ARTICLE 1
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
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company or the Guarantor in respect of certain taxes, assessments
or other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. 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, any Vice
President, the Treasurer, an Assistant Treasurer, 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.
"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
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now assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"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.
"Consolidated Net Worth" in respect of any Person means the total of the
amounts shown on the balance sheet of such Person and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of
the end of the most recent fiscal quarter of such Person ending at least 45 days
prior to the taking of any action for the purpose of which the determination is
being made, as (i) the par or stated value of all outstanding Capital Stock of
such Person plus (ii) paid-in capital or capital surplus relating to such
Capital Stock plus (iii) any retained earnings or earned surplus, less any
accumulated deficit.
"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.
"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 One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article 8, 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
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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.
"Designated Subsidiary" means any present or future consolidated
Subsidiary of the Guarantor, the Consolidated Net Worth of which constitutes at
least 5% of the Consolidated Net Worth of the Guarantor.
"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.
"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 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 and credit of such government or 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, 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, 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" means the unconditional guarantee of the payment of the
principal of, any premium or interest on, and any Additional Amounts with
respect to the Securities by the Guarantor, as more fully set forth in Article
16.
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"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Board of Directors" means the board of directors of the
Guarantor or any committee of that board duly authorized to act generally or in
any particular respect for the Guarantor hereunder.
"Guarantor's Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Guarantor to have
been duly adopted by the Guarantor's Board of Directors and to be in full force
and effect on the date of such certification, delivered to the Trustee.
"Guarantor's Officer's Certificate" means a certificate signed by the
Chairman of the Guarantor's Board of Directors, a Vice Chairman, the President,
the Chief Financial Officer, the Chief Investment Officer, the Chief Accounting
Officer, the General Counsel or the Secretary of the Guarantor, that complies
with the requirements of Section 314(e) of the Trustee Indenture Act and is
delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Guarantor by the
Chairman of the Guarantor's Board of Directors, a Vice Chairman, the President,
the Chief Financial Officer, the Chief Investment Officer, the Chief Accounting
Officer, the General Counsel or the Secretary, of the Guarantor, and delivered
to the Trustee.
"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; and (vi) all obligations of the type
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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 (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, the Guarantor 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 the Guarantor 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 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 16.2, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
"Legal Holidays" has the meaning specified in Section 1.14.
"Lien" has the meaning specified in Section 10.5.
"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, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
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"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency," with respect to any Securities, means an office or
agency of the Company and the Guarantor maintained or designated in 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.
"Officer's Certificate" means a certificate signed by an Authorized
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 or the Guarantor, 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 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, 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;
(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;
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(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 bona fide
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 an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) 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 face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
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 amount determined as provided in (i) above) of such Security,
and (iv) 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, the Guarantor or any other obligor upon the
Securities or any Coupons appertaining thereto or an Affiliate of the Company,
the Guarantor 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.
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"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 Security are payable as provided in or pursuant to
this Indenture or such Security.
"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.
"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 such Security.
"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 such Security.
"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 such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, 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.
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"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.
"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 such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"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) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.
"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.
"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 Security, 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 Security, 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, 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 or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee an Officer's Certificate or a
Guarantor's Officer's 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:
(1) a statement that the individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) 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
(4) 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 or the Guarantor
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 or the Guarantor, as the case may be, stating that the information
with respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, 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 may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. 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 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
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become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to
the Company or the Guarantor or both of them. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument 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 the Guarantor and any agent of the Trustee, the
Company or the Guarantor, 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.
Without limiting the generality of this Section 1.4, unless
otherwise provided in or pursuant to this Indenture, 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 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.
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 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.
(2) 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 with respect to any of the matters referred to in this Section.
(3) 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.
(4) 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
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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 and the Guarantor, wherever situated, if such certificate shall be
deemed by the Company, the Guarantor 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 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, the
Company and the Guarantor 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, the Guarantor and the
Trustee deem sufficient.
(5) If the Company or the Guarantor shall solicit from the Holders
of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or the
Guarantor, as the case may be, may at its option (but is not obligated
to), by Board Resolution or Guarantor's Board Resolution, as the case may
be, 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.
(6) 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, the Guarantor or the Company in
reliance thereon, whether or not notation of such Act is made upon such
Security.
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Section 1.5. Notices, etc. to Trustee, Company and Guarantor.
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, the Guarantor 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be,
addressed to the attention of its 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 or the
Guarantor, as the case may be.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
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 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
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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 Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7. 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.
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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. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security 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 1.13. 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 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, 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 be a Legal Holiday 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 with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, 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.
Section 1.15. 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 1.16. Judgment Currency.
The Company and the Guarantor each 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
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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, 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 1.17. No Security Interest Created. .
Subject to the provisions of Section 10.5, 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, the Guarantor or their respective Subsidiaries is or may be located.
Section 1.18. 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 or the Guarantor, as
the case may be, either directly or through the Company or the Guarantor, as the
case may be, 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 the Guarantor, as the case may be, 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
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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 1.19. Submission to Jurisdiction.
The Company and the Guarantor each 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 and the Guarantor each hereby irrevocably accepts,
generally and unconditionally, the jurisdiction of the aforesaid courts,
acknowledges their competence and irrevocably agrees to be bound by any
judgement rendered in such proceeding. The Company and the Guarantor each 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 judgement, attachment in the aid of execution, execution or otherwise) in
respect of this Indenture. The Company and the Guarantor each 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 ACE USA, Inc., 1133 Avenue
of the Americas, 32nd Floor, New York, New York 10036, 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 Peter N. Mear, General Counsel and Secretary, ACE Limited,
The ACE Building, 30 Woodbourne Avenue, Hamilton, HM 08, Bermuda) brought
against it with respect to any such proceeding in any such court in The City of
New York, such service being hereby acknowledged by each of the Company and the
Guarantor to be effective and binding service on it in every respect whether or
not the Company or the Guarantor, as the case may be, 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 respective
obligations of the Company and the Guarantor hereunder remain outstanding, or
until the appointment of a successor by the Company or the Guarantor, as the
case may be, and such successor's acceptance of such appointment. Upon such
acceptance, the Company or the Guarantor, as the case may be, shall notify the
Trustee of the name and address of such successor. The Company and the Guarantor
each 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 ACE USA, Inc. in full force
and effect so long as any of the Securities or Coupons or the respective
obligations of the Company and the Guarantor hereunder shall be outstanding. The
Trustee shall not be obligated and shall have no responsibility with respect to
any failure by the Company or the Guarantor to take any such action. Nothing
herein shall affect the right 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 or the Guarantor in the courts of any other jurisdiction or
jurisdictions.
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ARTICLE 2
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 a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture 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 this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
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.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_______________________________________
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities 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
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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
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 but need not be
accompanied by or contained in an Officer's 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 this Indenture or any Securities, 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.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Guarantor, the Trustee and any agent
of the Company, the Guarantor 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 3
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.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
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(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 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 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 date or dates, if any, from which such interest
shall accrue or the method or methods, if any, by
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which such date or dates are to be determined, the Interest Payment Dates,
if any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts 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;
(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;
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(14) if other than the principal amount thereof, the portion of the
principal 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;
(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;
(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) 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;
(19) 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 any covenants in addition to those
specified in Section 4.2(3) relating to the Securities of such series
which 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;
(20) 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;
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(21) 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;
(22) 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
(23) 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 Officer's 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 Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's 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 Officer's
Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, 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, 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.
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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.
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 Officer's 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 relying upon,
(1) an Opinion 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 legally 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
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(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
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officer's Certificate and a Guarantor's Officer's
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 Officer's
Certificate and Guarantor's Officer's 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 if the issue of such
Securities pursuant to this Indenture 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 this Indenture.
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
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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, 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, 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 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,
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. Unless otherwise provided in or
pursuant to this Indenture 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 Securities, the Trustee shall be the initial Security Registrar for
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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.
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, 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, 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 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
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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.
If provided in or pursuant to this Indenture with respect to Securities of
any series, 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 with respect to such series.
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, 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, 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 Officer's 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
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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) 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) 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 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.
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Except as otherwise provided in or pursuant to this Indenture, 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 11.3 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.
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 bona fide 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,
any interest on
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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) 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.
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, 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, 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 or the Guarantor, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be,
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
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proposed payment, and at the same time the Company or the Guarantor, as
the case may be, 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 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 or the Guarantor, 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 may, in its discretion, in the name and at the expense of the
Company or the Guarantor, 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 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 or the Guarantor, as the case may be, 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 notice given by the Company or the Guarantor, as
the case may be, 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
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company or the Guarantor, 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 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 the
Guarantor or another issuer,
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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 Guarantor, the Trustee and any agent of the Company
or the Guarantor 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 respect to such Registered Security
shall be overdue, and none of the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor or the Trustee shall be affected by notice
to the contrary.
The Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor 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 Guarantor, the Trustee or
any agent of the Company, the Guarantor 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
Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee as the owner of such global Security for all purposes whatsoever. None
of the Company, the Guarantor, the Trustee, 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
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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 or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor 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. All cancelled Securities and Coupons held by the
Trustee shall be destroyed by the Trustee, unless by a Company Order or
Guarantor Order the Company or the Guarantor, as the case may be, directs their
return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order or of the Guarantor
by a Guarantor Order, this Indenture shall cease to be of further effect with
respect to any series of Securities specified in such Company Order or Guarantor
Order and any Coupons appertaining thereto, and the Trustee, on receipt of a
Company Order or a Guarantor Order, at the expense of the Company and the
Guarantor, 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 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 or
the Guarantor and thereafter repaid to the Company or the Guarantor,
as the case may be, or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation;
or
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(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, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) if redeemable at the option of
the Company, 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 Guarantor,
and the Company or the Guarantor, 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, money in the Currency in which such Securities are payable in an
amount sufficient 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
on, and any Additional Amounts with respect to such Securities and any Coupons
appertaining thereto, 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;
(1) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Guarantor with respect
to the Outstanding Securities of such series and any Coupons appertaining
thereto; and
(2) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel and the Guarantor has delivered to
the Trustee a Guarantor's Officer's Certificate, each stating that all
conditions precedent herein provided for 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 and the
Guarantor to the Trustee under Section 6.6 and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the obligations of the Company, the Guarantor 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 16.2 (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 the Guarantor or another issuer
shall survive.
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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 and the Guarantor shall be deemed to have been discharged from
its obligations with respect to such Outstanding Securities and any
Coupons appertaining thereto and under the Guarantee in respect thereof,
respectively, 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 or the Guarantor 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 under the Guarantee
in respect thereof, and this Indenture insofar as such Securities and any
Coupons appertaining thereto, and the Guarantee in respect thereof, are
concerned (and the Trustee, at the expense of the Company and the
Guarantor, shall execute 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, 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 the Guarantor or another issuer, (ii) the
obligations of the Company, the Guarantor 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 16.2 (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
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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 the Guarantor or another issuer, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder 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 and the Guarantor shall be released from their obligations under
Sections 10.5 and 10.6, and, to the extent specified pursuant to Section
3.1(19), any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto, and the
Guarantee in respect thereof, 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, 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 and the Guarantor 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, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such
Section or such other covenant 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(4) or 5.1(9) or otherwise, as the
case may be, but, except as specified above, the remainder of this
Indenture and such Securities and Coupons appertaining thereto and the
Guarantee in respect thereof 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 and the Guarantee in respect
thereof:
(a) The Company or the Guarantor 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
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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 of principal of (and premium, if any) and interest,
if any, on 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, if any, on such Outstanding
Securities and any Coupons appertaining thereto at the Stated
Maturity 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.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company or the Guarantor is a party or by which either of them is
bound.
(c) 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 and, with respect to
defeasance only, at any time during the period ending on the 123rd
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company or the Guarantor shall have delivered to
the Trustee an Opinion of Counsel stating that (i) the Company or
the Guarantor 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.
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(e) In the case of an election under clause (3) of this
Section 4.2, the Company or the Guarantor 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) The Company or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that, after the 123rd
day after the date of deposit, all money and Government Obligations
(or other property as may be provided pursuant to Section 3.1)
(including the proceeds thereof) deposited or caused to be deposited
with the Trustee (or other qualifying trustee) pursuant to this
clause (4) to be held in trust will not be subject to any case or
proceeding (whether voluntary or involuntary) in respect of the
Company or the Guarantor under any Federal or State bankruptcy,
insolvency, reorganization or other similar law, or any decree or
order for relief in respect of the Company or the Guarantor issued
in connection therewith.
(g) The Company and the Guarantor shall have delivered to the
Trustee an Officer's Certificate and a Guarantor's Officer's
Certificate and the Company or the Guarantor 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 or the Guarantor in
connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or
any Security, 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, 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
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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 and the Guarantor (without duplication) 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, or
the Guarantor upon Guarantor Request, as the case may be, 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 and Additional Amounts, if any; but such money and Government
Obligations need not be segregated from other funds except to the extent
required by law.
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ARTICLE 5
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
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(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 deposit of any sinking fund payment when and as
due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor 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 and the Guarantor
by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of such series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) 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 or the Guarantor
(including, in each case, an Event of Default under any other series of
Securities), whether such Indebtedness now exists or shall hereafter be
created or incurred, shall happen and shall consist of default in the
payment of more than $50,000,000 in principal amount of such Indebtedness
at the
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maturity thereof (after giving effect to any applicable grace period) or
shall result in such Indebtedness in principal amount in excess of
$50,000,000 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 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 and the Guarantor by the
Trustee or to the Company, the Guarantor and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of such
series, a written notice specifying such event of default and requiring
the Company or the Guarantor 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
(6) the Company or the Guarantor 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 $50,000,000, which is not stayed on appeal
or is not otherwise being appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company or
the Guarantor 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 or the Guarantor 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 the Guarantor of any substantial part of the property
of the Company or the Guarantor or ordering the winding up or
liquidation of the affairs of the Company or the Guarantor; or
(8) the commencement by the Company or the Guarantor 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 or the Guarantor 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
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Company or the Guarantor 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 or the
Guarantor to the filing 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 the Guarantor or any substantial
part of the property of the Company or the Guarantor or the making by the
Company or the Guarantor of an assignment for the benefit of creditors, or
the taking of corporate action by the Company or the Guarantor in
furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture 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 (7) or (8)
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, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company and the Guarantor
(and to the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such 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, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum of money sufficient to pay
(a) all overdue installments of any 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,
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(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.
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 and the Guarantor each covenants, in each case, that if
(1) default is made in the payment of any installment of 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,
the Company or the Guarantor, as the case may be, 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 upon the overdue principal, any premium and, to the extent that
payment of such interest shall be legally enforceable, 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,
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and may enforce the same against the Company or the Guarantor 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, the Guarantor or any other obligor
upon the Securities of any series or the property of the Company, the Guarantor
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 or Additional Amounts) shall be
entitled and empowered, 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 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 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.
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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 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
Securities and Coupons for principal and any premium, 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;
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(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
and 3.7) 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 in or pursuant to this Indenture, 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.
Section 5.9. Restoration of Rights and Remedies .
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Guarantor, the Trustee and each such Holder 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 shall continue as though no such proceeding had
been instituted.
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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 or to each and every Holder of a Security or a Coupon 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 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 may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, 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 may waive any
past default hereunder with respect to such series and its consequences, except
a default
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(1) in the payment of the principal of, any premium or 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 and
the Guarantor each expressly waives (to the extent that it may lawfully do so)
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
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 to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or 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, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into other securities in accordance with its terms.
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ARTICLE 6
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 or of the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or a
Company Order or by a Guarantor Request or Guarantor 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 or of the
Guarantor's Board of Directors may be sufficiently evidenced by a Board
Resolution or by a Guarantor's Board Resolution, as the case may be;
(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 Officer's Certificate or,
if such matter pertains to the Guarantor, a Guarantor's Officer's
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 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
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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 and
the Guarantor, 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 or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(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; and
(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
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.
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, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment 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(5)
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.
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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 or the Guarantor, as the case may be, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities 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 or the Guarantor.
Section 6.6. Compensation and Reimbursement.
The Company and the Guarantor (without duplication) each agree:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (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
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(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 without negligence or bad faith on their part, 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 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 and the
Guarantor 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 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
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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.
(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, the Guarantor 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, the Guarantor 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, or the Guarantor, by or pursuant to a Guarantor's 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, and the Guarantor, by or pursuant to
a Guarantor's 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
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Company, the Guarantor 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 and
the Guarantor. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company and the Guarantor
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.
(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 request of the Company, the
Guarantor 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 Guarantor, 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
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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 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 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 and the Guarantor 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
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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.
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 the
Guarantor and, except as provided in or pursuant to this Indenture, 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, the Company 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, the Company and the Guarantor. 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
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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 successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company and the Guarantor (without duplication) each agree 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.
THE FIRST NATIONAL BANK OF CHICAGO,
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 Officer's Certificate by the Company), shall
appoint in
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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 7
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY
Section 7.1. Company and Guarantor to Furnish Trustee Names and Addresses
of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
and the Guarantor 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, 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, the Guarantor and the Trustee that none of the Company,
the Guarantor, 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 September 15 following the first issuance of Securities pursuant
to Section 3.1, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant
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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 Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) 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 and the Guarantor, pursuant to Section 314(a) of the Trust
Indenture Act, shall each:
(1) file with the Trustee, within 15 days after the Company or the
Guarantor, as the case may be, 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 or the Guarantor, as the case may be, 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 or the
Guarantor, as the case may be, is not 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case
may be, 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.
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ARTICLE 8
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 (whether or not affiliated with the Company), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company), and
the Company shall not permit any other Person (whether or not affiliated with
the Company) 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, 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 or any state
thereof or the District of Columbia 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 the Guarantor
and delivered to the Trustee the due and punctual payment of the principal
of, any premium and interest on and any Additional Amounts with respect to
all the Securities 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 and treating
any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered
to the Trustee an Officer's 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.
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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. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate or amalgamate with or merge into any
other Person (whether or not affiliated with the Guarantor), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Guarantor), and
the Guarantor shall not permit any other Person (whether or not affiliated with
the Guarantor) to consolidate or amalgamate with or merge into the Guarantor or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Guarantor; unless:
(1) in case the Guarantor 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, the
Person formed by such consolidation or amalgamation or into which the
Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Guarantor 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 or the Cayman Islands,
or any other country which is on the date of this Indenture a member of
the Organization for Economic Cooperation and Development, 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 the Company and delivered to the Trustee the due and punctual
payment of the principal of, any premium and interest on and any
Additional Amounts with respect to all the Securities and the performance
of every obligation in this Indenture and the Outstanding Securities on
the part of the Guarantor 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 and treating
any indebtedness which becomes an obligation of the Guarantor or a
Subsidiary as a result of such transaction as having been incurred by the
Guarantor or such Subsidiary at the time of 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; and
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(3) either the Guarantor or the successor Person shall have
delivered to the Trustee a Guarantor's Officer's 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 8.4. Successor Person Substituted for Guarantor.
Upon any consolidation or amalgamation by the Guarantor with or merger of
the Guarantor into any other Person or any conveyance, transfer or lease of the
properties and assets of the Guarantor substantially as an entirety to any
Person in accordance with Section 8.3, the successor Person formed by such
consolidation or amalgamation or into which the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Guarantor under this
Indenture with the same effect as if such successor Person had been named as the
Guarantor herein; and thereafter, except in the case of a lease, the predecessor
Person shall be released from all obligations and covenants under this
Indenture, the Securities and the Coupons.
ARTICLE 9
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), the Guarantor (when
authorized by or pursuant to a Guarantor's 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 or
the Guarantor, and the assumption by any such successor of the covenants
of the Company or the Guarantor, as the case may be, contained herein and
in the Securities; or
(2) to add to the covenants of the Company or the Guarantor, as the
case may be, 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 the Guarantor, as the case may be; 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 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
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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 form 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 in any material respect; or
(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 in any material
respect; or
(10) to secure the Securities pursuant to Section 10.5 or otherwise;
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.
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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, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company (when authorized by or pursuant to a
Company's Board Resolution), the Guarantor (when authorized by or pursuant to a
Guarantor'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 on or any Additional Amounts with respect to,
any Security, or reduce the principal amount thereof or the rate (or
modify the calculation of such rate) of 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 and the
Guarantor to pay Additional Amounts pursuant to the terms hereof (except
as contemplated by Section 8.1(1) and permitted by Section 9.1(1)), or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2 or the amount thereof provable in
bankruptcy pursuant to Section 5.4, 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 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 or effect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor in respect of the due
and punctual payments of principal of, or any premium or interest on, or
any sinking fund requirements or Additional Amounts with respect to, the
Securities, or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 10.8, except to increase any such percentage or to provide that
certain other provisions of this
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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 the
Guarantor or other securities, (whether or not issued by the Company or
the Guarantor) cash or property in accordance with its terms.
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 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 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
Officer's Certificate and Guarantor's Officer's 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
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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.
Section 9.7. 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 10
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 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 and the Guarantor 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 or the Guarantor 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 and the
Guarantor 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 Stock Exchange
of the United Kingdom and the Republic of Ireland or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States
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and such stock exchange shall so require, the Company and the Guarantor shall
maintain a Paying Agent in London, Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of such
series are listed on such exchange. The Company and the Guarantor 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 or the Guarantor
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, and the Company and the Guarantor hereby appoint the
Trustee as their agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise provided in or pursuant to this Indenture, 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 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
and the Guarantor in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company and the Guarantor 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 or the Guarantor of its
obligation to maintain an Office or Agency in each Place of Payment for
Securities of any series for such purposes. The Company and the Guarantor 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, the Company and the
Guarantor hereby designate as the Place of Payment for each series of Securities
the Borough of Manhattan, The City of New York, and initially appoint 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 and
the Guarantor 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
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Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one exchange rate agent.
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 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 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 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 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 or any premium,
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 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 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;
(2) give the Trustee notice of any default by the Company or the
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, any premium or 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.
The Company or the Guarantor may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order
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or Guarantor Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company, the Guarantor or such Paying Agent, such sums to be
held by the Trustee upon the same terms as those upon which such sums were held
by the Company, the Guarantor or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such 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 or
the Guarantor, in trust for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to any Security of any series
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 deposited by the Guarantor, paid to the Guarantor on Guarantor
Request), or (if then held by the Company or the Guarantor) 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 and the Guarantor 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,
may at the expense of the Company and the Guarantor 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 and 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 or the
Guarantor, as the case may be.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. 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
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 Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at
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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 Officer's Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officer's Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and premium, if any, or
interest 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, assessment or other
governmental charge described in the Securities of such series. If any such
withholding shall be required, then such Officer's Certificate shall specify by
country 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 the terms of such
Securities. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officer's Certificate furnished pursuant to this Section 10.4.
Section 10.5. Limitation on Liens on Stock of Designated Subsidiaries.
So long as any Securities are Outstanding, neither the Company nor the
Guarantor will, nor will it permit any of its respective Subsidiaries to,
create, assume, incur, guarantee or otherwise permit to exist any Indebtedness
secured by any mortgage, pledge, lien, security interest or other encumbrance (a
"Lien") upon any shares of Capital Stock of any Designated Subsidiary (whether
such shares of stock are now owned or hereafter acquired) without effectively
providing concurrently that the Securities (and, if the Company and the
Guarantor so elect, any other Indebtedness of the Company that is not
subordinate to the Securities and with respect to which the governing
instruments require, or pursuant to which the Company is otherwise obligated, to
provide such security) shall be secured equally and ratably with such
Indebtedness for at least the time period such other Indebtedness is so secured.
Section 10.6. Limitation on Disposition of Stock of Designated
Subsidiaries.
So long as any Securities are outstanding and except in a transaction
otherwise governed by this Indenture, neither the Company nor the Guarantor will
issue, sell, assign, transfer or otherwise dispose of any shares of, securities
convertible into, or warrants, rights or options to subscribe for or purchase
shares of, Capital Stock (other than Preferred Stock having no voting rights of
any kind) of any Designated Subsidiary, and will not permit any Designated
Subsidiary (other than to the Company or the Guarantor) to issue any shares
(other than the director's qualifying shares) of, or securities convertible
into, or warrants, rights or options to subscribe for or purchase shares of,
Capital Stock (other than Preferred Stock having no voting rights of any kind)
of any Designated Subsidiary, if, after giving effect to any such transaction
and the issuance of the maximum number of shares issuable upon the conversion or
exercise of all such
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convertible securities, warrants, rights or options, the Company or the
Guarantor, as the case may be, would own, directly or indirectly, less than 80%
of the shares of Capital Stock of such Designated Subsidiary (other than
Preferred Stock having no voting rights of any kind); provided, however, that
(i) any issuance, sale, assignment, transfer or other disposition permitted by
the Company or the Guarantor may only be made for at least a fair market value
consideration as determined by the Board of Directors or the Guarantor's Board
of Directors, as the case may be, pursuant to a Board Resolution or Guarantor's
Board Resolution, as the case may be, adopted in good faith and (ii) the
foregoing shall not prohibit any such issuance or disposition of securities if
required by any law or any regulation or order of any governmental or insurance
regulatory authority. Notwithstanding the foregoing, (i) the Company or the
Guarantor, as the case may be, may merge or consolidate any Designated
Subsidiary into or with another direct or indirect Subsidiary of the Guarantor,
the shares of capital stock of which the Guarantor owns at least 80%, and (ii)
the Company or the Guarantor, as the case may be, may, subject to the provisions
of Article 8, sell, assign, transfer or otherwise dispose of the entire Capital
Stock of any Designated Subsidiary at one time for at least a fair market value
consideration as determined by the Board of Directors or Guarantor's Board of
Directors, as the case may be, pursuant to a Board Resolution or Guarantor's
Board Resolution, as the case may be, adopted in good faith.
Section 10.7. Corporate Existence.
Subject to Article 8, the Company and the Guarantor shall do or cause to
be done all things necessary to preserve and keep in full force and effect their
respective corporate existences and that of each of their respective
Subsidiaries and their respective rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not obligate the Company or the
Guarantor or any of their respective Subsidiaries to preserve any such right or
franchise if the Company, the Guarantor or any such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of its
business or the business of such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to any Holder.
Section 10.8. Waiver of Certain Covenants.
The Company or the Guarantor, as the case may be, may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 10.5, 10.6 or 10.7 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, 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 Guarantor and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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Section 10.9. 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 Officer's 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 10.9.
Section 10.10. Guarantor Statement as to Compliance; Notice of Certain
Defaults.
(1) The Guarantor 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 a Guarantor's Officer's Certificate) signed
by the principal executive officer, the principal financial officer or the
principal accounting officer of the Guarantor, stating that
(a) a review of the activities of the Guarantor during such
year and of 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 Guarantor has complied with 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 constitutes, or which after notice or lapse of time or both
would become, an
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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 Guarantor shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of 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 Guarantor's
compliance with the covenants contained in this Article 10 other than as
specifically set forth in this Section 10.10.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company 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 of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
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.
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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
Securities of any series, if any Security selected for partial redemption is
converted into other securities of the Company or exchanged for securities of
the Guarantor or 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:
(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
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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,
and, if applicable, that interest thereon 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 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 Guarantor, 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
(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 to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company or the Guarantor shall
deposit, with respect to the Securities of any series called for redemption
pursuant to Section 11.4, with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent or the Guarantor is acting as Paying
Agent, segregate and hold in trust as provided in Section 10.3) 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 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, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company and the Guarantor shall default in the payment of the Redemption Price
and accrued interest) 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 this
Indenture or the Bearer Securities of such series, 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 this Indenture or the Registered
Securities of such series, 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.
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
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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.
ARTICLE 12
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.
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.
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Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company or the Guarantor 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 or Guarantor 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
request of the Company or the Guarantor from time to time pay over and deliver
to the Company or the Guarantor, as the case may be, any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company or the
Guarantor to the Trustee of Securities of that series purchased by the Company
or the Guarantor having an unpaid principal amount equal to the cash payment
requested to be released to the Company or the Guarantor.
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 Officer's
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 Officer's 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.
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ARTICLE 13
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 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.
ARTICLE 14
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 Securities, 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 or the Guarantor may
specify in a written notice to the Trustee.
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ARTICLE 15
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), the Guarantor (by or pursuant to a Guarantor's 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 pursuant to Section 1.6) or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company, the Guarantor 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
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entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel, any representatives of the Guarantor 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.
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
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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, the Guarantor 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 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 in triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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,
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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 16
GUARANTEE AND INDEMNITY
Section 16.1. The Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of, any premium and interest on, and any Additional Amounts
with respect to such Security and the due and punctual payment of the sinking
fund payments (if any) provided for pursuant to the terms of such Security, when
and as the same shall become due and payable, whether at maturity, by
acceleration, redemption, repayment or otherwise, in accordance with the terms
of such Security and of this Indenture. In case of the failure of the Company
punctually to pay any such principal, premium, interest, Additional Amounts or
sinking fund payment, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether at
maturity, upon acceleration, redemption, repayment or otherwise, and as if such
payment were made by the Company.
Section 16.2. Net Payments.
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 by the Guarantor without withholding or
deduction at source for, or on account of, any present or future taxes, fees,
duties, assessments or governmental charges of whatever nature imposed or levied
by or on behalf of the Cayman Islands or Bermuda (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 Guarantor shall, subject to certain limitations and exceptions set
forth below, pay to the Holder of any such Security or any Coupon 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 Guarantor shall not be
required to make payment of such Additional Amounts for or on account of:
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(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 Guarantor
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; or
(4) any combination of items (1), (2) and (3);
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 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
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applicable) in any provision hereof shall not be construed as excluding the
payment of Additional Amounts in those provisions hereof where such express
mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, at least 10 days prior to the first
Interest Payment Date with respect to a series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Guarantor's Officer's
Certificate, the Guarantor shall furnish to the Trustee and the principal Paying
Agent or Paying Agents, if other than the Trustee, a Guarantor's Officer's
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and premium, if any, interest or any other
amounts on the Securities of such series shall be made to Holders of Securities
of such series or the Coupons appertaining thereto without withholding for or on
account of any tax, fee, duty, assessment or other governmental charge described
in this Section 16.2. If any such withholding shall be required, then such
Guarantor's Officer's 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 Guarantor agrees to pay to the Trustee or such
Paying Agent the Additional Amounts required by this Section 16.2. The Guarantor
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Guarantor's Officer's
Certificate furnished pursuant to this Section 16.2.
Section 16.3. Guarantee Unconditional, etc.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Security or this Indenture, any failure
to enforce the provisions of any Security or this Indenture, or any waiver,
modification, consent or indulgence granted with respect thereto by the Holder
of such Security or the Trustee, the recovery of any judgment against the
Company or any action to enforce the same, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any such Security or the Indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of, any premium and
interest on, and any Additional Amounts and sinking fund payments required with
respect to, the Securities and the complete performance of all other obligations
contained in the Securities. The Guarantor further agrees, to the fullest extent
that it lawfully may do so, that, as between the Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 5.2 hereof for the
purposes of this Guarantee, notwithstanding any stay,
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injunction or prohibition extant under any bankruptcy, insolvency,
reorganization or other similar law of any jurisdiction preventing such
acceleration in respect of the obligations guaranteed hereby.
Section 16.4. Reinstatement.
This Guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time payment on any Security, in whole or in part, is
rescinded or must otherwise be restored to the Company or the Guarantor upon the
bankruptcy, liquidation or reorganization of the Company or otherwise.
Section 16.5. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of any
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of,
any premium and interest on, and any Additional Amounts and sinking fund
payments required with respect to, all Securities shall have been paid in full.
Section 16.6. Indemnity.
As a separate and alternative stipulation, the Guarantor unconditionally
and irrevocably agrees that any sum expressed to be payable by the Company under
this Indenture, the Securities or the Coupons but which is for any reason
(whether or not now known or becoming known to the Company, the Guarantor, the
Trustee or any Holder of any Security or Coupon) not recoverable from the
Guarantor on the basis of a guarantee will nevertheless be recoverable from it
as if it were the sole principal debtor and will be paid by it to the Trustee on
demand. This indemnity constitutes a separate and independent obligation from
the other obligations in this Indenture, gives rise to a separate and
independent cause of action and will apply irrespective of any indulgence
granted by the Trustee or any Holder of any Security or Coupon.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] ACE INA HOLDINGS INC.
Attest:
By_______________________________________
Name:
Title:
[SEAL] ACE LIMITED,
as Guarantor
Attest:
By_______________________________________
Name:
Title:
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
Attest:
By______________________________________
Name:
Title:
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Exhibit 4.6
ACE INA HOLDINGS INC.,
Issuer
and
ACE LIMITED,
Guarantor
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
---------------
INDENTURE
---------------
Dated as of ____________, 1999
Subordinated Debt Securities
<PAGE>
Exhibit 4.6
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
----------- -----------------
ss.310(a)(1) ..............................................................6.7
(a)(2) ...................................................................6.7
(b) ......................................................................6.8
ss.312(a) .................................................................7.1
(b) ......................................................................7.2
(c) ......................................................................7.2
ss.313(a) .................................................................7.3
(b)(2) ...................................................................7.3
(c) ......................................................................7.3
(d) ......................................................................7.3
ss.314(a) .................................................................7.4
(c)(1) ...................................................................1.2
(c)(2) ...................................................................1.2
(e) ......................................................................1.2
(f) ......................................................................1.2
ss.316(a) (last sentence) .................................................1.1
(a)(1)(A) ..........................................................5.2, 5.12
(a)(1)(B) ...............................................................5.13
(b) ......................................................................5.8
ss.317(a)(1) ..............................................................5.3
(a)(2) ...................................................................5.4
(b) .....................................................................10.3
ss.318(a) ................................................................10.8
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
Table of Contents
Page
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions....................................................2
ACE Trusts...............................................................2
Act......................................................................2
Additional Amounts.......................................................2
Additional Interests.....................................................3
Additional Sums..........................................................3
Additional Taxes.........................................................3
Affiliate................................................................3
Authenticating Agent.....................................................3
Authorized Newspaper.....................................................3
Authorized Officer.......................................................3
Bearer Security..........................................................3
Board of Directors.......................................................4
Board Resolution.........................................................4
Business Day.............................................................4
Capital Stock............................................................4
Capitalized Lease Obligation.............................................4
Commission...............................................................4
Common Securities........................................................4
Common Stock.............................................................4
Company..................................................................4
Company Request..........................................................5
Company Senior Indebtedness..............................................5
Conversion Event.........................................................5
Corporate Trust Office...................................................5
Corporation..............................................................5
Coupon...................................................................5
Currency.................................................................5
CUSIP number.............................................................6
Defaulted Interest.......................................................6
Direct Action............................................................6
Distributions............................................................6
Dollar...................................................................6
Event of Default.........................................................6
Extension Period.........................................................6
Foreign Currency.........................................................6
Government Obligations...................................................6
Guarantee................................................................7
Guarantee Agreement......................................................7
Guarantor................................................................7
Guarantor's Board of Directors...........................................7
Guarantor's Board Resolution.............................................7
Guarantor's Officer's Certificate........................................7
Guarantor Request and Guarantor Order....................................7
Guarantor Senior Indebtedness............................................7
Holder...................................................................8
Indebtedness.............................................................8
Indenture................................................................8
Independent Public Accountants...........................................9
Indexed Security.........................................................9
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Interest.................................................................9
Interest Payment Date....................................................9
Investment Company Event.................................................9
Judgment Currency........................................................9
Lien.....................................................................9
Maturity.................................................................9
New York Banking Day....................................................10
1940 Act................................................................10
Office..................................................................10
Original Issue Discount Security........................................10
Outstanding.............................................................10
Person..................................................................12
Place of Payment........................................................12
Preferred Securities....................................................12
Preferred Securities Guarantee..........................................12
Predecessor Security....................................................12
Preferred Stock.........................................................12
Property Trustee........................................................12
Redemption Date.........................................................13
Redemption Price........................................................13
Registered Security.....................................................13
Regular Record Date.....................................................13
Required Currency.......................................................13
Responsible Officer.....................................................13
Security................................................................13
Security Register.......................................................13
Senior Indebtedness.....................................................13
Special Event...........................................................13
Special Record Date.....................................................14
Stated Maturity.........................................................14
Subsidiary..............................................................14
Tax Event...............................................................14
Trust Agreement.........................................................14
Trust Indenture Act.....................................................14
Trust Securities........................................................15
Trustee.................................................................15
United States...........................................................15
United States Alien.....................................................15
U.S. Depositor..........................................................15
Vice President..........................................................15
Section 1.2. Compliance Certificates and Opinions..........................15
Section 1.3. Form of Documents Delivered to Trustee........................16
Section 1.4. Acts of Holders...............................................17
Section 1.5. Notices, etc. to Trustee, Company and Guarantor...............19
Section 1.6. Notice to Holders of Securities; Waiver.......................19
Section 1.7. Language of Notices...........................................20
Section 1.8. Conflict with Trust Indenture Act.............................21
Section 1.9. Effect of Headings and Table of Contents......................21
Section 1.10. Successors and Assigns ......................................21
Section 1.11. Separability Clause .........................................21
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Section 1.12. Holders of Preferred Securities as Third Party
Beneficiaries ...............................................21
Section 1.13. Benefits of Indenture .......................................21
Section 1.14. Governing Law ...............................................22
Section 1.15. Legal Holidays ..............................................22
Section 1.16. Counterparts ................................................22
Section 1.17. Judgment Currency ...........................................22
Section 1.18. No Security Interest Created ................................23
Section 1.19. Limitation on Individual Liability ..........................23
Section 1.20. Submission to Jurisdiction ..................................23
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally...............................................24
Section 2.2. Form of Trustee's Certificate of Authentication...............25
Section 2.3. Securities in Global Form.....................................25
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series..........................26
Section 3.2. Currency; Denominations.......................................30
Section 3.3. Execution, Authentication, Delivery and Dating................31
Section 3.4. Temporary Securities..........................................33
Section 3.5. Registration, Transfer and Exchange...........................33
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities..............37
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved.....................................................38
Section 3.8. Persons Deemed Owners.........................................40
Section 3.9. Cancellation..................................................41
Section 3.10. Computation of Interest .....................................41
Section 3.11. Extension of Interest Payment Period ........................41
Section 3.12. Right of Set-Off ............................................42
Section 3.13. Agreed Tax Treatment ........................................42
Section 3.14. Extension of Stated Maturity; Adjustment of Stated
Maturity Upon an Exchange ...................................42
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ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge....................................43
Section 4.2. Defeasance and Covenant Defeasance............................44
Section 4.3. Application of Trust Money....................................49
ARTICLE 5
REMEDIES
Section 5.1. Events of Default.............................................49
Section 5.2. Acceleration of Maturity; Rescission and Annulment............52
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee ......................................................53
Section 5.4. Trustee May File Proofs of Claim..............................54
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons ........................................55
Section 5.6. Application of Money Collected................................55
Section 5.7. Limitations on Suits..........................................56
Section 5.8. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts..............56
Section 5.9. Restoration of Rights and Remedies............................57
Section 5.10. Rights and Remedies Cumulative ..............................57
Section 5.11. Delay or Omission Not Waiver ................................58
Section 5.12. Control by Holders of Securities ............................58
Section 5.13. Waiver of Past Defaults .....................................58
Section 5.14. Waiver of Usury, Stay or Extension Laws .....................59
Section 5.15. Undertaking for Costs .......................................59
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.....................................59
Section 6.2. Notice of Defaults............................................61
Section 6.3. Not Responsible for Recitals or Issuance of Securities........61
Section 6.4. May Hold Securities...........................................62
Section 6.5. Money Held in Trust...........................................62
Section 6.6. Compensation and Reimbursement................................62
Section 6.7. Corporate Trustee Required; Eligibility.......................63
Section 6.8. Resignation and Removal; Appointment of Successor.............63
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Section 6.9. Acceptance of Appointment by Successor........................65
Section 6.10. Merger, Conversion, Consolidation or Succession to Business. 66
Section 6.11. Appointment of Authenticating Agent .........................67
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY
Section 7.1. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders..........................................69
Section 7.2. Preservation of Information; Communications to Holders........69
Section 7.3. Reports by Trustee............................................69
Section 7.4. Reports by Company and Guarantor..............................70
ARTICLE 8
CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms..........71
Section 8.2. Successor Person Substituted for Company......................72
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms........72
Section 8.4. Successor Person Substituted for Guarantor....................73
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders............73
Section 9.2. Supplemental Indentures with Consent of Holders...............75
Section 9.3. Execution of Supplemental Indentures..........................77
Section 9.4. Effect of Supplemental Indentures.............................77
Section 9.5. Reference in Securities to Supplemental Indentures............77
Section 9.6. Conformity with Trust Indenture Act...........................77
Section 9.7. Effect on Senior Indebtedness.................................78
Section 9.8. Notice of Supplemental Indenture..............................78
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional
Amounts .....................................................78
Section 10.2. Maintenance of Office or Agency .............................78
Section 10.3. Money for Securities Payments to Be Held in Trust ...........80
Section 10.4. Additional Amounts ..........................................81
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Section 10.5. Corporate Existence .........................................82
Section 10.6. Waiver of Certain Covenants .................................82
Section 10.7. Company Statement as to Compliance; Notice of
Certain Defaults ............................................83
Section 10.8. Guarantor Statement as to Compliance; Notice of
Certain Defaults ............................................83
Section 10.9. Additional Sums .............................................84
Section 10.10. Prohibition Against Dividends, etc .........................84
Section 10.11. Payment of Expenses of each ACE Trust ......................85
Section 10.12. Ownership of Common Securities .............................85
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article ....................................86
Section 11.2. Election to Redeem; Notice to Trustee .......................86
Section 11.3. Selection by Trustee of Securities to be Redeemed ...........86
Section 11.4. Notice of Redemption ........................................87
Section 11.5. Deposit of Redemption Price .................................88
Section 11.6. Securities Payable on Redemption Date .......................89
Section 11.7. Securities Redeemed in Part .................................90
Section 11.8. Right of Redemption of Securities Issued to an ACE Trust ....90
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article ....................................90
Section 12.2. Satisfaction of Sinking Fund Payments with Securities .......91
Section 12.3. Redemption of Securities for Sinking Fund ...................91
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article ....................................92
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article ....................................92
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ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called ...................93
Section 15.2. Call, Notice and Place of Meetings ..........................93
Section 15.3. Persons Entitled to Vote at Meetings ........................93
Section 15.4. Quorum; Action ..............................................94
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings .................................................94
Section 15.6. Counting Votes and Recording Action of Meetings .............95
ARTICLE 16
SUBORDINATION OF SECURITIES
Section 16.1. Agreement to Subordinate ....................................96
Section 16.2. Default on Company Senior Indebtedness ......................96
Section 16.3. Liquidation; Dissolution; Bankruptcy ........................97
Section 16.4. Subrogation .................................................98
Section 16.5. Trustee to Effectuate Subordination .........................99
Section 16.6. Notice by the Company .......................................99
Section 16.7. Rights of the Trustee; Holders of Company Senior
Indebtedness ...............................................100
Section 16.8. Subordination May Not Be Impaired 101
ARTICLE 17
GUARANTEE AND INDEMNITY
Section 17.1. The Guarantee ..............................................102
Section 17.2. Net Payments ...............................................102
Section 17.3. Guarantee Unconditional, etc. ..............................104
Section 17.4. Reinstatement ..............................................105
Section 17.5. Subrogation ................................................105
Section 17.6. Indemnity ..................................................105
ARTICLE 18
SUBORDINATION OF GUARANTEE
Section 18.1. Agreement to Subordinate Guarantee .........................105
Section 18.2. Default on Guarantor Senior Indebtedness ...................106
Section 18.3. Liquidation; Dissolution; Bankruptcy .......................106
Section 18.4. Subrogation ................................................108
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Section 18.5. Trustee to Effectuate Subordination ........................109
Section 18.6. Notice by the Guarantor ....................................109
Section 18.7. Rights of the Trustee; Holders of Guarantor Senior
Indebtedness ...............................................110
Section 18.8. Subordination May Not Be Impaired ..........................110
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INDENTURE, dated as of __________, 1999 (the "Indenture"), among ACE INA
HOLDINGS INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office located at c/o ACE USA Inc., Six Concourse Parkway, Suite 2500,
Atlanta, Georgia 30328, ACE LIMITED, a company duly organized and existing under
the laws of the Cayman Islands (hereinafter called the "Guarantor"), having its
principal executive office at The ACE Building, 30 Woodbourne Avenue, Hamilton
HM 08, Bermuda, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association duly organized and existing under the laws of the United States of
America (hereinafter called the "Trustee"), having its Corporate Trust Office
located at One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
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 ACE 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.
For value received, the Guarantor has duly authorized the execution and
delivery of this Indenture to provide for the issuance of the Guarantee and the
indemnity provided for herein. All things necessary to make this Indenture a
valid agreement of the Guarantor, 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:
<PAGE>
ARTICLE 1
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.
"ACE Trusts" means, collectively, ACE Capital Trust I, ACE Capital Trust
II and ACE Capital Trust III, each a statutory business trust formed under the
laws of the State of Delaware, or 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.
"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
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company or the Guarantor 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
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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 10.9.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which an ACE 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 or the Guarantor, as the case may be, shall not be deemed to include any
ACE Trust to which Securities and the Guarantee in respect thereof have been
issued. For the purposes of this definition, "control," when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"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, any Vice
President, the Treasurer, an Assistant Treasurer, 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.
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"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.
"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 an Affiliate 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(7) and 5.1(8) unless such
interest is an allowed claim enforceable against the Company in a proceeding
under federal or state bankruptcy laws, (e) trade accounts payable and
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(f) any Indebtedness, including all other debt securities and guaranties in
respect of those debt securities, initially issued to (x) any ACE Trust or (y)
any trust, partnership or other entity affiliated with the Guarantor which is a
financing vehicle of the Guarantor or any Affiliate of the Guarantor in
connection with the issuance by such entity of Preferred Securities or other
securities which are similar to Preferred Securities that are guaranteed by the
Guarantor pursuant to an instrument that ranks pari passu with or junior in
right of payment to 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.
"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 One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article 8, 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 ACE Trust, has the meaning specified
in the applicable Trust Agreement of such ACE 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.
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"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 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 and credit of such government or 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, 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, 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" means the unconditional guarantee of the payment of the
principal of, any premium or interest on, and any Additional Amounts with
respect to the Securities by the Guarantor, as more fully set forth in Article
17.
"Guarantee Agreement" means the Guarantee Agreement with respect to the
Preferred Securities of an ACE 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.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Board of Directors" means the board of directors of the
Guarantor or any committee of that board duly authorized to act generally or in
any particular respect for the Guarantor hereunder.
"Guarantor's Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Guarantor to have
been duly adopted by the
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Guarantor's Board of Directors and to be in full force and effect on the date of
such certification, delivered to the Trustee.
"Guarantor's Officer's Certificate" means a certificate signed by the
Chairman of the Guarantor's Board of Directors, a Vice Chairman, the President,
the Chief Financial Officer, the Chief Investment Officer, the Chief Accounting
Officer, the General Counsel or the Secretary of the Guarantor, that complies
with the requirements of Section 314(e) of the Trustee Indenture Act and is
delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Guarantor by the
Chairman of the Guarantor's Board of Directors, a Vice Chairman, the President,
the Chief Financial Officer, the Chief Investment Officer, the Chief Accounting
Officer, the General Counsel or the Secretary of the Guarantor, and delivered to
the Trustee.
"Guarantor Senior Indebtedness" means, with respect to the Securities of
any particular series, all Indebtedness of the Guarantor outstanding at any
time, except (a) the Guarantor's obligations under the Guarantee in respect of
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 Guarantor's obligations
under the Guarantee in respect of the Securities of such series, (c)
Indebtedness of the Guarantor to an Affiliate of the Guarantor, (d) interest
accruing after the filing of a petition initiating any proceeding relating to
the Guarantor referred to in Section 5.1(7) and 5.1(8) unless such interest is
an allowed claim enforceable against the Guarantor in a proceeding under federal
or state bankruptcy laws, (e) trade accounts payable, (f) the Guarantor's
obligations under the Guarantee in respect of the securities of any series
initially issued to (x) any ACE Trust or (y) any trust, partnership or other
entity affiliated with the Guarantor which is a financing vehicle of the
Guarantor or any Affiliate of the Guarantor in connection with the issuance by
such entity of Preferred Securities or other securities which are similar to
Preferred Securities that are guaranteed by the Guarantor pursuant to an
instrument that ranks pari passu with or junior in right of payment to the
Preferred Securities Guarantees. and (g) all Preferred Securities Guarantees and
all guarantees similar to the Preferred Securities Guarantees issued by the
Guarantor on behalf of holders of Preferred Securities of an ACE Trust or other
securities similar to Preferred Securities issued by any trust, partnership or
other entity affiliated with the Guarantor which is a financing vehicle of the
Guarantor or any Affiliate of the Guarantor.
"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
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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; (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 (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, the Guarantor 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 the Guarantor 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 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.
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"Investment Company Event" means, in respect of an ACE Trust, the receipt
by such ACE 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 ACE 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 ACE Trust.
"Judgment Currency" has the meaning specified in Section 1.16.
"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, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"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 in 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.
"Officer's Certificate" means a certificate signed by an Authorized
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 or the Guarantor, 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 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.
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"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, 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;
(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 bona fide
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 an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) 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
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principal face amount of such Indexed Security at original issuance, unless
otherwise provided in or pursuant to this Indenture, and (iii) 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
amount determined as provided in (i) above) of such Security, and (iv)
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 regrded
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, the Guarantor or any other obligor upon the
Securities or any Coupons appertaining thereto or an Affiliate of the Company,
the Guarantor 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 Security are payable as provided in or pursuant to
this Indenture or such Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Preferred Securities Guarantee" means the guarantee by ACE Limited, in
its capacity as guarantor with respect to the Preferred Securities of an ACE
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
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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.
"Property Trustee," with respect to any ACE 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 such Security.
"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 such Security.
"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 such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, 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, collectively, Company Senior Indebtedness with respect to the
Securities of such series and Guarantor Senior Indebtedness with respect to the
Securities of such series.
"Special Event" means an Investment Company Event or a Tax Event.
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"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 such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"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) 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 an ACE Trust, the receipt by such ACE
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 ACE Trust, there is more than an
insubstantial risk that (i) such ACE 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 ACE 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.
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"Trust Securities," with respect to any ACE Trust, means, collectively,
the Common Securities and Preferred Securities issued by such ACE 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 Security, 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.
"United States Alien," except as otherwise provided in or pursuant to this
Indenture or any Security, 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, 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 or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee an Officer's Certificate or a
Guarantor's Officer's 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
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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:
(1) a statement that the individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) 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 or the Guarantor
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 or the Guarantor, as the case may be, stating that the information
with respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, 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.
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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 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 delivered to the
Trustee and, where it is hereby expressly required, to the Company or the
Guarantor or both of them. Such instrument or instruments and 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 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 the Guarantor and any agent of the Trustee, the
Company or the Guarantor, 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.
Without limiting the generality of this Section 1.4, unless
otherwise provided in or pursuant to this Indenture, 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 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.
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 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
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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.
(2) 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 with respect to any of the matters referred to in this Section.
(3) 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.
(4) 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 and the Guarantor, wherever situated,
if such certificate shall be deemed by the Company, the Guarantor 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
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, the Company and the Guarantor 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, the Guarantor and the Trustee deem sufficient.
(5) If the Company or the Guarantor shall solicit from the Holders
of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or the
Guarantor, as the case may be, may at its option (but is not obligated
to), by Board Resolution or Guarantor's Board Resolution, as the case may
be, 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
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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.
(6) 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, the Guarantor 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, Company and Guarantor.
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, the Guarantor 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case
may be, addressed to the attention of its 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 or
the Guarantor, as the case may be.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
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
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(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 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 Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7. 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.
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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 and the Guarantor hereby acknowledge that, to the extent
specifically set forth herein, the holders of the Preferred Securities of an ACE
Trust shall expressly be third party beneficiaries of this Indenture. The
Company and the Guarantor further acknowledge that, if an Event of Default has
occurred and is continuing and is attributable to the failure of the Company and
the Guarantor 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 ACE
Trust, any holder of the Preferred Securities of such ACE Trust may institute a
Direct Action against the Company or the Guarantor.
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 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.
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Section 1.15. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, 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 and the Guarantor each 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, 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
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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, the Guarantor or their respective
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 or the Guarantor, as
the case may be, either directly or through the Company or the Guarantor, as the
case may be, 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 the Guarantor, as the case may be, 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 and the Guarantor each 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 and the Guarantor each hereby irrevocably accepts,
generally and unconditionally, the jurisdiction of the aforesaid courts,
acknowledges their competence and irrevocably agrees to be bound by any
judgement rendered in such proceeding. The Company and the Guarantor each 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
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(whether through service or notice, attachment prior to judgement, attachment in
the aid of execution, execution or otherwise) in respect of this Indenture. The
Company and the Guarantor each 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 ACE USA, Inc., 1133 Avenue of the Americas, 32nd Floor,
New York, New York 10036, 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 Peter N.
Mear, General Counsel and Secretary, ACE Limited, The ACE Building, 30
Woodbourne Avenue, Hamilton, HM 08, Bermuda) brought against it with respect to
any such proceeding in any such court in The City of New York, such service
being hereby acknowledged by each of the Company and the Guarantor to be
effective and binding service on it in every respect whether or not the Company
or the Guarantor, as the case may be, 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 respective obligations of the Company
and the Guarantor hereunder remain outstanding, or until the appointment of a
successor by the Company or the Guarantor, as the case may be, and such
successor's acceptance of such appointment. Upon such acceptance, the Company or
the Guarantor, as the case may be, shall notify the Trustee of the name and
address of such successor. The Company and the Guarantor each 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 ACE USA, Inc. in full force and effect so long as any of the
Securities or Coupons or the respective obligations of the Company and the
Guarantor hereunder shall be outstanding. The Trustee shall not be obligated and
shall have no responsibility with respect to any failure by the Company or the
Guarantor to take any such action. Nothing herein shall affect the right 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 or the
Guarantor in the courts of any other jurisdiction or jurisdictions.
ARTICLE 2
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 a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture 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.
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Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
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.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By___________________________________
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities 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
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 but need not be
accompanied by or contained in an Officer's Certificate and need not be
accompanied by an Opinion of Counsel.
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Notwithstanding the provisions of Section 3.7, unless otherwise specified
in or pursuant to this Indenture or any Securities, 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.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Guarantor, the Trustee and any agent
of the Company, the Guarantor 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 3
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. The Securities of each series shall be guaranteed by the
Guarantor, which Guarantee shall be subordinated in right of payment to all
Guarantor Senior Indebtedness with respect to such series as provided in Article
18.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto,
(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
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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 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 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
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 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;
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(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;
(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 amount thereof, the portion of the
principal 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;
(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;
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(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;
(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 any covenants in addition to those
specified in Section 4.2(3) relating to the Securities of such series
which 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 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;
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(23) 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;
(24) 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
(25) 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 Officer's 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 Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's 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 Officer's
Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, 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, 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.
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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.
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 Officer's 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 relying upon,
(1) an Opinion 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 legally 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
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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
(d) this Indenture has been qualified under the Trust Indenture Act;
and
(2) an Officer's Certificate and a Guarantor's Officer's 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 Officer's
Certificate and Guarantor's Officer's 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 if the issue of such
Securities pursuant to this Indenture 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 this Indenture.
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
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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, 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, 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 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,
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. Unless otherwise provided in or
pursuant to this Indenture 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 Securities, 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
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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.
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, 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, 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 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
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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.
If provided in or pursuant to this Indenture with respect to Securities of
any series, 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 with respect to such series.
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, 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, 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 Officer's 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
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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) 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) 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 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, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning
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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 11.3
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.
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 bona fide 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,
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.
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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) 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.
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, 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, 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 or the Guarantor, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be,
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 or the Guarantor, as the case may be, 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
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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 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 or the Guarantor, 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 may, in its discretion, in the
name and at the expense of the Company or the Guarantor, 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 conditio precedent to the establishment of such
Special Record Date. Notice of the proposed 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 or the Guarantor, as the case may be, 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 notice given by the Company or the Guarantor, as
the case may be, 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
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company or the Guarantor, 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 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 the
Guarantor or 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
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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 Guarantor, the Trustee and any agent of the Company
or the Guarantor 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 respect to such Registered Security
shall be overdue, and none of the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor or the Trustee shall be affected by notice
to the contrary.
The Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor 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 Guarantor, the Trustee or
any agent of the Company, the Guarantor 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
Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee as the owner of such global Security for all purposes whatsoever. None
of the Company, the Guarantor, the Trustee, 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 or the Guarantor may at
any
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time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor 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. All cancelled
Securities and Coupons held by the Trustee shall be destroyed by the Trustee,
unless by a Company Order or Guarantor Order the Company or the Guarantor, as
the case may be, directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, 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 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 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 an ACE Trust, prior to the earlier of (i) the
date the Distributions on the Preferred Securities of such ACE Trust are payable
or (ii) the date the trustees of such ACE 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.
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Section 3.12. Right of Set-Off.
With respect to the Securities of a series issued to an ACE Trust,
notwithstanding anything to the contrary in this Indenture, the Company or the
Guarantor, as applicable, shall each 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 or the Guarantor, 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, the
Guarantor 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 ACE Trust and the exchange of such Securities for
the Preferred Securities of such ACE Trust, or (b) extend the Stated Maturity of
the principal of the Securities of such series; provided that, at the time any
election to extend such Stated Maturity is made and at the time of such
extension, (i) neither the Company nor the Guarantor is in bankruptcy, otherwise
insolvent or in liquidation, (ii) neither the Company nor the Guarantor is in
default in the payment of any interest or principal or Additional Amounts on the
Securities of such series or under the Guarantee in respect thereof, as the case
may be, and no deferred interest payments thereon have accrued, (iii) the
applicable ACE 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 ACE Trust;
provided, further, that, if the Company exercises its right to liquidate the
applicable ACE Trust and exchange the Securities of such series for the
Preferred Securities of such ACE 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 ACE Trust.
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ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order or of the Guarantor
by a Guarantor Order, this Indenture shall cease to be of further effect with
respect to any series of Securities specified in such Company Order or Guarantor
Order and any Coupons appertaining thereto, and the Trustee, on receipt of a
Company Order or a Guarantor Order, at the expense of the Company and the
Guarantor, 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 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 or
the Guarantor and thereafter repaid to the Company or the Guarantor,
as the case may be, 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, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) if redeemable at the option of
the Company, 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 Guarantor,
and the Company or the Guarantor, 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, money in the Currency in which such Securities are payable in an
amount sufficient 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
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Coupons appertaining thereto, 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 or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Guarantor with respect
to the Outstanding Securities of such series and any Coupons appertaining
thereto; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel and the Guarantor has delivered to
the Trustee a Guarantor's Officer's Certificate, each stating that all
conditions precedent herein provided for 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 and the
Guarantor to the Trustee under Section 6.6 and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the obligations of the Company, the Guarantor 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 the Guarantor 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.
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(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 and the Guarantor shall be deemed to have been discharged from
its obligations with respect to such Outstanding Securities and any
Coupons appertaining thereto and under the Guarantee in respect thereof,
respectively, 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 or the Guarantor 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 under the Guarantee
in respect thereof, and this Indenture insofar as such Securities and any
Coupons appertaining thereto, and the Guarantee in respect thereof, are
concerned (and the Trustee, at the expense of the Company and the
Guarantor, shall execute 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 the Guarantor or
another issuer, (ii) the obligations of the Company, the Guarantor 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 the Guarantor or another issuer, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this Section 4.2. The ompany 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 and the Guarantor shall be released from their obligations under
any covenant applicable to such Securities specified pursuant to Section
3.1(20), with respect to such Outstanding Securities and any Coupons
appertaining thereto, and the Guarantee in respect thereof, 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
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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, 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 and the Guarantor 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, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such
Section or such other covenant 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(4) or 5.1(9) or otherwise, as the
case may be, but, except as specified above, the remainder of this
Indenture and such Securities and Coupons appertaining thereto and the
Guarantee in respect thereof 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 and the Guarantee in respect
thereof:
(a) The Company or the Guarantor 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 of principal of (and premium, if any) and
interest (including any Additional Interest), if any, on 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 such
Outstanding Securities and any Coupons appertaining thereto at the
Stated Maturity of such principal or installment of principal or
premium or interest and (z) any mandatory sinking fund payments or
analogous payments applicable to
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such Outstanding Securities and any Coupons appertaining threto 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.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company or the Guarantor is a party or by which either of them is
bound.
(c) 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 and, with respect to
defeasance only, at any time during the period ending on the 123rd
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company or the Guarantor shall have delivered to
the Trustee an Opinion of Counsel stating that (i) the Company or
the Guarantor 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, the Company or the Guarantor 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) The Company or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that, after the 123rd
day after the date of deposit, all money and Government Obligations
(or other property as may be provided pursuant to Section 3.1)
(including the proceeds thereof) deposited or caused to be deposited
with the Trustee (or other qualifying trustee) pursuant to this
clause (4) to be held in trust will not be subject to any case or
proceeding (whether voluntary or involuntary) in respect of the
Company or the Guarantor under any Federal or State bankruptcy,
insolvency, reorganization or other similar
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law, or any decree or order for relief in respect of the Company or
the Guarantor issued in connection therewith.
(g) The Company and the Guarantor shall have delivered to the
Trustee an Officer's Certificate and a Guarantor's Officer's
Certificate and the Company or the Guarantor 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 or the Guarantor in
connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or
any Security, 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 and the Guarantor (without duplication) 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, or
the Guarantor upon Guarantor Request, as the case may be, any money or
Government Obligations (or other property and any
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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 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 5
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
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(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 30 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
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(3) default in the deposit of any sinking fund payment when and as
due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor 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 and the Guarantor
by the Trustee or to the Company, the Guarantor 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 an ACE Trust,
the holders of at least 25% in liquidation amount of the Preferred
Securities of that ACE 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
(5) 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 or the Guarantor
(including, in each case, an Event of Default under any other series of
Securities), whether such Indebtedness now exists or shall hereafter be
created or incurred, shall happen and shall consist of default in the
payment of more than $50,000,000 in principal amount of such Indebtedness
at the maturity thereof (after giving effect to any applicable grace
period) or shall result in such Indebtedness in principal amount in excess
of $50,000,000 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 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 and the Guarantor by the
Trustee or to the Company, the Guarantor 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 an ACE Trust, the
holders of at least 25% in liquidation amount of the Preferred Securities
of that ACE Trust then outstanding, a written notice specifying such event
of default and requiring the Company or the Guarantor 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
(6) the Company or the Guarantor 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 $50,000,000, which is not stayed on appeal
or is not otherwise being appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
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(a) a decree or order for relief in respect of the Company or
the Guarantor 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 or the Guarantor 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 the Guarantor of any substantial part of the property
of the Company or the Guarantor or ordering the winding up or
liquidation of the affairs of the Company or the Guarantor; or
(8) the commencement by the Company or the Guarantor 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 or the Guarantor 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 or the Guarantor 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 or the Guarantor to the filing 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 the Guarantor or
any substantial part of the property of the Company or the Guarantor or
the making by the Company or the Guarantor of an assignment for the
benefit of creditors, or the taking of corporate action by the Company or
the Guarantor in furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture 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 (7) or (8)
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, or such lesser
amount as may be provided for in the Securities of such series, to be due
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and payable immediately, by a notice in writing to the Company and the Guarantor
(and to the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable;
provided that, in the case of Securities of a series issued to an ACE 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, or such lesser amount as may
be provided for in 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 ACE Trust then outstanding shall have such right by a notice
in writing to the Company, the Guarantor, 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 (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest (including any Additional
Interest) on the Outstanding Securities of that series (or such lesser amount as
may be provided for in the Securities of such 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 an ACE Trust, such consent of the holders of the
Preferred Securities and the Common Securities of such ACE Trust as may be
required under the Trust Agreement of such ACE 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 or the Guarantor has paid or deposited with the
Trustee a sum of money sufficient to pay
(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
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(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 an ACE 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 ACE Trust then outstanding shall have such right by written
notice to the Company, the Guarantor, 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 and the Guarantor each covenants, in each case, 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,
the Company or the Guarantor, as the case may be, 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 an ACE Trust, without duplication
of any other amounts paid to such ACE 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.
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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 the Guarantor 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, the Guarantor or any other obligor
upon the Securities of any series or the property of the Company, the Guarantor
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, 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 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
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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
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.
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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 in or pursuant to this Indenture, 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 of a series issued to an ACE Trust, any holder of Preferred
Securities issued by such ACE Trust shall have the right, upon the occurrence of
an Event of Default described in Section 5.1(1) or
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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 or the Guarantor in connection with a Direct Action, the Company and the
Guarantor 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 or the Guarantor 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 or the
Guarantor, as the case may be, 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 Guarantor, 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 may
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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 an ACE Trust, the holders of not less than a
majority in liquidation amount of the Preferred Securities issued by such ACE
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
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hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company and the Guarantor each expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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 an ACE Trust, the holders of more than 10% in
liquidation amount of the Preferred Securities of that ACE 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, on
or after the date for repayment) or for the enforcement of the right, if any, to
convert or exchange any Security into other securities in accordance with its
terms.
ARTICLE 6
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 or of the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or a
Company Order or by a Guarantor Request or Guarantor Order, as the case
may be (in each case, other than delivery of any Security, together with
any Coupons appertaining thereto, to the Trustee
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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 or of the Guarantor's Board of Directors may be
sufficiently evidenced by a Board Resolution or by a Guarantor's Board
Resolution, as the case may be;
(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 Officer's Certificate or,
if such matter pertains to the Guarantor, a Guarantor's Officer's
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 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 and
the Guarantor, 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 or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(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; and
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(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
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.
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 or purchase
fund installment 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(5) 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 or the Guarantor, as the case may be, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities 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
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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 or the Guarantor.
Section 6.6. Compensation and Reimbursement.
The Company and the Guarantor (without duplication) each agree:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (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 without negligence or bad faith on their part, 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 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 and the
Guarantor 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
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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.
(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, the Guarantor 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
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(b) the Trustee shall cease to be eligible under Section 6.7
and shall fail to resign after written request therefor by the
Company, the Guarantor 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, or the Guarantor, by or pursuant to a Guarantor's 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, and the Guarantor, by or pursuant to
a Guarantor's 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, the Guarantor 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 and the Guarantor. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company and the Guarantor 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.
(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
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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 request of the Company, the
Guarantor 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 Guarantor, 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 ith 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 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 and the Guarantor 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.
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
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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 the
Guarantor and, except as provided in or pursuant to this Indenture, 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, the Company 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, the Company and the Guarantor. 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 successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company and the Guarantor (without duplication) each agree 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.
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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.
THE FIRST NATIONAL BANK OF CHICAGO, 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 Officer's 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 7
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY
Section 7.1. Company and Guarantor to Furnish Trustee Names and Addresses
of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
and the Guarantor 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, the Guarantor and the Trustee that none of the Company,
the Guarantor, 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 September 15 following the first issuance of Securities 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 Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) 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 and the Guarantor, pursuant to Section 314(a) of the Trust
Indenture Act, shall each:
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(1) file with the Trustee, within 15 days after the Company or the
Guarantor, as the case may be, 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 or the Guarantor, as the case may be, 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 or the
Guarantor, as the case may be, is not 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case
may be, 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 8
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 (whether or not affiliated with the Company), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company), and
the Company shall not permit any other Person (whether or not affiliated with
the Company) 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, the
Person formed by such consolidation or
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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 or any state thereof or the District of Columbia 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 the Guarantor 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 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 and treating
any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default 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 an ACE
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 Officer's 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.
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Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate or amalgamate with or merge into any
other Person (whether or not affiliated with the Guarantor), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Guarantor), and
the Guarantor shall not permit any other Person (whether or not affiliated with
the Guarantor) to consolidate or amalgamate with or merge into the Guarantor or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Guarantor; unless:
(1) in case the Guarantor 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, the
Person formed by such consolidation or amalgamation or into which the
Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Guarantor 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 or the Cayman Islands,
or any other country which is on the date of this Indenture a member of
the Organization for Economic Cooperation and Development, 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 the Company 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 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 Guarantor 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 and treating
any indebtedness which becomes an obligation of the Guarantor or a
Subsidiary as a result of such transaction as having been incurred by the
Guarantor or such Subsidiary at the time of 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 Securities of a series issued to an ACE Trust,
such transaction is permitted under the related Guarantee Agreement and
does not give rise to any breach or violation of such Guarantee Agreement;
and
(4) either the Guarantor or the successor Person shall have
delivered to the Trustee a Guarantor's Officer's 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.
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Section 8.4. Successor Person Substituted for Guarantor.
Upon any consolidation or amalgamation by the Guarantor with or merger of
the Guarantor into any other Person or any conveyance, transfer or lease of the
properties and assets of the Guarantor substantially as an entirety to any
Person in accordance with Section 8.3, the successor Person formed by such
consolidation or amalgamation or into which the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Guarantor under this
Indenture with the same effect as if such successor Person had been named as the
Guarantor herein; and thereafter, except in the case of a lease, the predecessor
Person shall be released from all obligations and covenants under this
Indenture, the Securities and the Coupons.
ARTICLE 9
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), the Guarantor (when
authorized by or pursuant to a Guarantor's 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 or
the Guarantor, and the assumption by any such successor of the covenants
of the Company or the Guarantor, as the case may be, contained herein and
in the Securities; or
(2) to add to the covenants of the Company or the Guarantor, as the
case may be, 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 the Guarantor, as the case may be; 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 form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 2.1 and 3.1; or
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(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 an ACE Trust and for so long as any of the Preferred
Securities issued by such ACE Trust shall remain outstanding, the holders
of such Preferred Securities, in any material respect; or
(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 an ACE Trust and for so long as any of
the Preferred Securities issued by such ACE Trust shall remain
outstanding, the holders of such Preferred Securities, in any material
respect; or
(10) to secure the Securities; 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 an ACE Trust, such consent of holders of the
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Preferred Securities and the Common Securities of such ACE Trust as may be
required under the Trust Agreement of such ACE Trust), by Act of said Holders
delivered to the Company, the Guarantor and the Trustee, the Company (when
authorized by or pursuant to a Company's Board Resolution), the Guarantor (when
authorized by or pursuant to a Guarantor'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 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 and the
Guarantor to pay Additional Amounts pursuant to the terms hereof (except
as contemplated by Section 8.1(1) and permitted by Section 9.1(1)), or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2 or the amount thereof provable in
bankruptcy pursuant to Section 5.4, 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 or the Guarantee in respect thereof in a
manner adverse to Holders of Securities, or
(4) modify or effect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor in respect of the due
and punctual payments of principal of, or any premium or interest
(including any Additional Interest)
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on, or any sinking fund requirements or Additional Amounts with respect
to, the Securities, or
(5) modify any of the provisions of this Section, Section 5.13 or
Section 10.6, 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
(6) make any change that adversely affects the right to convert or
exchange any Security into or for securities of the Company or the
Guarantor or other securities (whether or not issued by the Company or the
Guarantor), cash or property in accordance with its terms,
provided that, in the case of the Securities of a series issued to an ACE Trust,
so long as any of the Preferred Securities of such ACE 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 an
ACE Trust, so long as any of the Preferred Securities of such ACE 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 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
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Officer's Certificate and Guarantor's Officer's 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.
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 or the
subordination of the Guarantee in respect thereof to Guarantor Senior
Indebtedness with respect to such series, respectively, without the prior
written consent of the holders of such Company Senior Indebtedness or Guarantor
Senior Indebtedness, respectively.
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.
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ARTICLE 10
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 and the Guarantor 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 or the Guarantor 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 and the
Guarantor 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 Stock Exchange
of the United Kingdom and the Republic of Ireland or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company and the Guarantor shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company and the Guarantor 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 or the Guarantor 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, and the Company and the Guarantor hereby appoint the Trustee as their
agent to receive all such presentations, surrenders, notices and demands.
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Except as otherwise provided in or pursuant to this Indenture, 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 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
and the Guarantor in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company and the Guarantor 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 or the Guarantor of its
obligation to maintain an Office or Agency in each Place of Payment for
Securities of any series for such purposes. The Company and the Guarantor 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, the Company and the
Guarantor hereby designate as the Place of Payment for each series of Securities
the Borough of Manhattan, The City of New York, and initially appoint 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 and
the Guarantor 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.
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
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becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and shall promptly notify the Trustee 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 or 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 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;
(2) give the Trustee notice of any default by the Company or the
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, 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.
The Company or the Guarantor may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order or Guarantor Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company, the Guarantor or such Paying
Agent, such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Company, the Guarantor or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such 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 or
the Guarantor, 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
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interest or any such Additional Amounts shall have become due and payable shall
be paid to the Company on Company Request (or if deposited by the Guarantor,
paid to the Guarantor on Guarantor Request), or (if then held by the Company or
the Guarantor) 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 and the Guarantor 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, may at the expense of the
Company and the Guarantor 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 and 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 or the Guarantor, as the case may be.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. 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
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 Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, 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 Officer's Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officer's Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest 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,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officer's
Certificate shall specify by
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country 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 the terms of such
Securities. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officer's Certificate furnished pursuant to this Section 10.4.
Section 10.5. Corporate Existence.
Subject to Article 8, the Company and the Guarantor shall do or cause to
be done all things necessary to preserve and keep in full force and effect their
respective corporate existences and that of each of their respective
Subsidiaries and their respective rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not obligate the Company or the
Guarantor or any of their respective Subsidiaries to preserve any such right or
franchise if the Company, the Guarantor or any such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of its
business or the business of such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to any Holder.
Section 10.6. Waiver of Certain Covenants.
The Company or the Guarantor, as the case may be, may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 10.5 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, 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 Guarantor and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 10.7. 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 Officer's 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
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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 10.7.
Section 10.8. Guarantor Statement as to Compliance; Notice of Certain
Defaults.
(1) The Guarantor 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 a Guarantor's Officer's Certificate) signed
by the principal executive officer, the principal financial officer or the
principal accounting officer of the Guarantor, stating that
(a) a review of the activities of the Guarantor during such
year and of 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 Guarantor has complied with 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 constitutes, or which 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 Guarantor shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of 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 Guarantor's
compliance with the covenants contained in this Article 10 other than as
specifically set forth in this Section 10.8.
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Section 10.9. Additional Sums.
In the case of Securities of a series issued to an ACE Trust, except as
otherwise specified as contemplated by Section 3.1, in the event that (i) such
ACE Trust is the Holder of all of the Outstanding Securities of such series,
(ii) a Tax Event in respect of such ACE 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 ACE Trust pursuant
to Section 9.2(b) of the related Trust Agreement, the Company shall pay to such
ACE Trust (and its permitted successors or assigns under the related Trust
Agreement), for so long as such ACE Trust (or its permitted successor or
assignee) is the registered holder of any Securities of such series, such
additional amounts as may be necessary in order that the amount of Distributions
then due and payable by such ACE 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 10.10. Prohibition Against Dividends, etc.
Except as otherwise specified as contemplated by Section 3.1, the Company
and the Guarantor each covenant and agree with each Holder of Securities of a
series issued to an ACE 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 the Guarantor, as the case may
be, 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 or the Guarantor,
as the case may be, that ranks junior in interest to the Securities of such
series or the Guarantee in respect thereof, as the case may be, or make any
guarantee payments with respect to any guarantee by the Company or the
Guarantor, as the case may be, of the debt securities of any Subsidiary of the
Company or the Guarantor, as the case may be, if such guarantee ranks junior in
interest to the Securities of such series or the Guarantee in respect thereof,
as the case may be (other than (i) dividends or distributions on the Capital
Stock of the Company paid or made to the Guarantor and dividends or
distributions in Common Stock of the Company or the Guarantor, as the case may
be, (ii) redemptions or purchases of any rights outstanding under a shareholder
rights plan of the Company or the Guarantor, as the case may be, or the
declaration of a dividend of such rights or
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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 or the
Guarantor, as the case may be, for its respective directors, officers or
employees) if at such time (1) there shall have occurred any event of which the
Company or the Guarantor, as the case may be, has actual knowledge that (A) with
the giving of notice or the lapse of time or both, would constitute an Event o
Default hereunder and (B) in respect of which the Company or the Guarantor, as
the case may be, 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 10.11. Payment of Expenses of each ACE Trust.
The Guarantor 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 ACE 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 ACE Trust in accordance with the provisions of its Trust Agreement in order
to permit such ACE Trust to make distributions on and redemptions of its
Preferred Securities in accordance with such Trust Agreement.
Section 10.12. Ownership of Common Securities.
The Company covenants, as to each series of Securities issued to an ACE
Trust in connection with the issuance of Preferred Securities and Common
Securities by that ACE Trust, (a) to maintain directly or indirectly 100%
ownership of the Common Securities of such ACE 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 ACE 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 ACE Trust, (ii) the redemption of all of the
Preferred Securities and Common Securities of such ACE Trust or (iii) certain
mergers, consolidations or amalgamations, each as permitted by the Trust
Agreement of such ACE Trust and (c) to use its reasonable efforts, consistent
with the terms and provisions of the related Trust Agreement, to cause such ACE
Trust to remain classified as a grantor trust and not an association taxable as
a corporation for United States federal income tax purposes.
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ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company 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 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 by an ACE Trust, the Company shall also deliver
a copy of such notice to the Property Trustee of such ACE 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
Securities of any series, if any Security selected for partial redemption is
converted into other securities of the Company
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or exchanged for securities of the Guarantor or 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:
(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,
and, if applicable, that interest thereon 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 after the Redemption Date, are to be surrendered for payment of
the Redemption Price and any accrued interest and Additional Amounts
pertaining thereto,
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(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 Guarantor, 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
(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 to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company or the Guarantor shall
deposit, with respect to the Securities of any series called for redemption
pursuant to Section 11.4, with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent or the Guarantor is acting as Paying
Agent, segregate and hold in trust as provided in Section 10.3) 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.
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Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company and the Guarantor shall default in the payment of the Redemption Price
and accrued interest) 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 this
Indenture or the Bearer Securities of such series, 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 this Indenture or the Registered
Securities of such series, 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.
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
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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 an ACE Trust.
In the case of the Securities of a series issued to an ACE Trust, except
as otherwise specified as contemplated by Section 3.1, if a Special Event in
respect of such ACE 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.
ARTICLE 12
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.
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.
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Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company or the Guarantor 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 or Guarantor 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
request of the Company or the Guarantor from time to time pay over and deliver
to the Company or the Guarantor, as the case may be, any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company or the
Guarantor to the Trustee of Securities of that series purchased by the Company
or the Guarantor having an unpaid principal amount equal to the cash payment
requested to be released to the Company or the Guarantor.
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 Officer's
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 Officer's 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.
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ARTICLE 13
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 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.
ARTICLE 14
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 Securities, 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 or the Guarantor may
specify in a written notice to the Trustee.
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ARTICLE 15
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), the Guarantor (by or pursuant to a Guarantor's 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 pursuant to Section 1.6) or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company, the Guarantor 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
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entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel, any representatives of the Guarantor 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.
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
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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, the Guarantor 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 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 in triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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,
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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 16
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, Officer's Certificate and Guarantor's Officer's 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, 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.
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 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.
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
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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 dissolution, winding-up, liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, 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 upon any such dissolution, winding-up,
liquidation or reorganization, or in any such bankruptcy, insolvency,
receivership or other proceeding, 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 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 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.
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
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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 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. Nothing in Section 16.2 or in this
Section 16.3 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.6 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 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.
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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
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
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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 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.
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
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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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ARTICLE 17
GUARANTEE AND INDEMNITY
Section 17.1. The Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of, any premium and interest (including any Additional
Interest) on, any Additional Amounts, and, if applicable, any Additional Sums
with respect to such Security and the due and punctual payment of the sinking
fund payments (if any) provided for pursuant to the terms of such Security, when
and as the same shall become due and payable, whether at maturity, by
acceleration, redemption, repayment or otherwise, in accordance with the terms
of such Security and of this Indenture. In case of the failure of the Company
punctually to pay any such principal, premium, interest (including any
Additional Interest), Additional Amounts, Additional Sums or sinking fund
payment, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at
maturity, upon acceleration, redemption, repayment or otherwise, and as if such
payment were made by the Company.
Section 17.2. Net Payments.
All payments of principal of and premium, if any, interest (including any
Additional Interest) and any other amounts on, or in respect of, the Securities
of any series or any Coupon appertaining thereto shall be made by the Guarantor
without withholding or deduction at source for, or on account of, any present or
future taxes, fees, duties, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of the Cayman Islands or Bermuda (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 Guarantor shall, subject to
certain limitations and exceptions set forth below, pay to the Holder of any
such Security or any Coupon 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 Guarantor shall not be required to make payment of such
Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of
whatever nature which would not have been imposed but for the fact that
such Holder: (A) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent
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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 Guarantor
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; or
(4) any combination of items (1), (2) and (3);
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 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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Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, at least 10 days prior to the first
Interest Payment Date with respect to a series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Guarantor's Officer's
Certificate, the Guarantor shall furnish to the Trustee and the principal Paying
Agent or Paying Agents, if other than the Trustee, a Guarantor's Officer's
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and premium, if any, interest or any other
amounts on the Securities of such series shall be made to Holders of Securities
of such series or the Coupons appertaining thereto without withholding for or on
account of any tax, fee, duty, assessment or other governmental charge described
in this Section 17.2. If any such withholding shall be required, then such
Guarantor's Officer's 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 Guarantor agrees to pay to the Trustee or such
Paying Agent the Additional Amounts required by this Section 17.2. The Guarantor
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Guarantor's Officer's
Certificate furnished pursuant to this Section 17.2.
Section 17.3. Guarantee Unconditional, etc.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Security or this Indenture, any failure
to enforce the provisions of any Security or this Indenture, or any waiver,
modification, consent or indulgence granted with respect thereto by the Holder
of such Security or the Trustee, the recovery of any judgment against the
Company or any action to enforce the same, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any such Security or the Indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of, any premium and
interest (including any Additional Interest) on, and any Additional Amounts,
and, if applicable, any Additional Sums and sinking fund payments required with
respect to, the Securities and the complete performance of all other obligations
contained in the Securities. The Guarantor further agrees, to the fullest extent
that it lawfully may do so, that, as between the Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 5.2 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or prohibition
extant under any bankruptcy, insolvency, reorganization or other similar law of
any jurisdiction preventing such acceleration in respect of the obligations
guaranteed hereby.
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Section 17.4. Reinstatement.
This Guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time payment on any Security, in whole or in part, is
rescinded or must otherwise be restored to the Company or the Guarantor upon the
bankruptcy, liquidation or reorganization of the Company or otherwise.
Section 17.5. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of any
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of,
any premium and interest (including any Additional Interest) on, and any
Additional Amounts and, if applicable, any Additional Sums and sinking fund
payments required with respect to, all Securities shall have been paid in full.
Section 17.6. Indemnity.
As a separate and alternative stipulation, the Guarantor unconditionally
and irrevocably agrees that any sum expressed to be payable by the Company under
this Indenture, the Securities or the Coupons but which is for any reason
(whether or not now known or becoming known to the Company, the Guarantor, the
Trustee or any Holder of any Security or Coupon) not recoverable from the
Guarantor on the basis of a guarantee will nevertheless be recoverable from it
as if it were the sole principal debtor and will be paid by it to the Trustee on
demand. This indemnity constitutes a separate and independent obligation from
the other obligations in this Indenture, gives rise to a separate and
independent cause of action and will apply irrespective of any indulgence
granted by the Trustee or any Holder of any Security or Coupon.
ARTICLE 18
SUBORDINATION OF GUARANTEE
Section 18.1. Agreement to Subordinate Guarantee.
The Guarantor covenants and agrees, and each Holder of Securities issued
hereunder and under any 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 18; 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 Guarantor pursuant to the Guarantee of the principal
of, any premium and interest (including any Additional Interest) on, any
Additional Amounts and, if applicable, any Additional Sums 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,
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be subordinate in right of payment to the prior payment in full of all Guarantor
Senior Indebtedness with respect to such series, whether outstanding at the date
of this Indenture or thereafter incurred.
No provision of this Article 18 shall prevent the occurrence of any
default or Event of Default hereunder.
Section 18.2. Default on Guarantor Senior Indebtedness.
In the event and during the continuation of any default by the Guarantor
in the payment of principal, premium, interest (including any Additional
Interest) or any other amount due on any Guarantor Senior Indebtedness with
respect to the Securities of any series, or in the event that the maturity of
any Guarantor Senior Indebtedness with respect to the Securities of any series
has been accelerated because of a default, then, in either case, no payment
shall be made by the Guarantor pursuant to the Guarantee 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 or,
if applicable, Additional Sums with respect to, the Securities of such series.
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 18.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such
Guarantor Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Guarantor
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of such Guarantor 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 Guarantor Senior Indebtedness and only the amounts specified
in such notice to the Trustee shall be paid to the holders of such Guarantor
Senior Indebtedness.
Section 18.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Guarantor or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution, winding-up, liquidation or reorganization of the
Guarantor, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Guarantor 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 Guarantor pursuant to the Guarantee on account
of the principal of, premium or interest (including any Additional Interest) on,
or Additional Amounts or, if applicable, Additional Sums with respect to, the
Securities of such series; and upon any such dissolution, winding-up,
liquidation or reorganization, or in any such bankruptcy, insolvency,
receivership or other proceeding, any payment by the Guarantor, or distribution
of assets of the Guarantor of any kind or character, whether in cash, property
or securities, to which the Holders or the Trustee would
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be entitled to receive from the Guarantor, except for the provisions of this
Article 18, shall be paid by the Guarantor 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 Guarantor Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of
such Guarantor Senior Indebtedness held by such holders, as calculated by the
Guarantor) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Guarantor Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Guarantor 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 Guarantor
Senior Indebtedness, before any payment or distribution is made pursuant to the
Guarantee to the Holders of the Securities of such series or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Guarantor pursuant to the Guarantee of any kind or
character, whether in cash, property or securities, prohibited by the foregoing
shall be received by the Trustee before all such Guarantor 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 Guarantor
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Guarantor, for application
to the payment of all such Guarantor Senior Indebtedness remaining unpaid to the
extent necessary to pay such Guarantor 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 Guarantor Senior
Indebtedness.
For purposes of this Article 18, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Guarantor as reorganized
or readjusted, or securities of the Guarantor 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 18 with respect to
the Guarantee in respect of any series of Securities to the payment of all
Guarantor Senior Indebtedness with respect to the Securities of such series that
may at the time be outstanding, provided that (i) such Guarantor 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
Guarantor Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Guarantor with, or the merger of the Guarantor into, another Person or the
liquidation or dissolution of the Guarantor 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 8.3 and
8.4 of this Indenture shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 18.3 if such other Person
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Sections 8.3 and 8.4 of this
106
<PAGE>
Indenture. Nothing in Section 18.2 or in this Section 18.3 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.6 of this
Indenture.
Section 18.4. Subrogation.
Subject to the payment in full of all Guarantor 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 Guarantor Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Guarantor applicable to such Guarantor Senior
Indebtedness until the principal of, any premium and interest (including any
Additional Interest) on, and any Additional Amounts or, if applicable,
Additional Sums 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 Guarantor 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 18, and no payment over pursuant to the provisions of
this Article 18 to or for the benefit of the holders of such Guarantor Senior
Indebtedness by Holders of the Securities of such series or the Trustee, shall,
as between the Guarantor, its creditors other than holders of such Guarantor
Senior Indebtedness, and the Holders of the Securities of such series, be deemed
to be a payment by the Guarantor to or on account of such Guarantor Senior
Indebtedness. It is understood that the provisions of this Article 18 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
such Guarantor Senior Indebtedness with respect to the Securities of such series
on the other hand.
Nothing contained in this Article 18 or elsewhere in this Indenture, any
Additional Provisions or in the Securities of any series is intended to or shall
impair, as between the Guarantor, its creditors other than the holders of
Guarantor Senior Indebtedness with respect to the Securities of such series, and
the Holders of the Securities of such series, the obligation of the Guarantor,
which is absolute and unconditional, to pay to the Holders of the Securities of
such series pursuant to the Guarantee the principal of, any premium and interest
(including any Additional Interest) on, and any Additional Amounts or, if
applicable, Additional Sums 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 Guarantor, other than the holders
of such Guarantor 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 18 of the holders
of such Guarantor Senior Indebtedness in respect of cash, property or securities
of the Guarantor, as the case may be, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Guarantor referred to in
this Article 18, 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
107
<PAGE>
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 Guarantor Senior Indebtedness with respect to the Securities of such
series and other indebtedness of the Guarantor, 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 18.
Section 18.5. 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 18 and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
Section 18.6. Notice by the Guarantor.
The Guarantor shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Guarantor that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Securities of any
series pursuant to the provisions of this Article 18. Notwithstanding the
provisions of this Article 18 or any other provision of this Indenture or any
Additional Provisions, the Trustee shall not be charged with knowledge of the
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 18, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Guarantor or a
holder or holders of Guarantor 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 18.6 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 pursuant to the Guarantee of the
principal of, any premium or interest (including any Additional Interest) on, or
any Additional Amounts or, if applicable, Additional Sums 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 Guarantor 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
Guarantor 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
Guarantor Senior Indebtedness to participate in any payment or
108
<PAGE>
distribution pursuant to this Article 18, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Guarantor 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 18, 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 Guarantor referred to in
this Article 18, the Trustee and the Holders shall be entitled to 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 Guarantor Senior Indebtedness
with respect to the Securities of such series and other indebtedness of the
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 18.
Section 18.7. Rights of the Trustee; Holders of Guarantor Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article 18 in respect of any Guarantor 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 Guarantor 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 Guarantor 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 18, and no implied covenants or obligations with respect to the holders
of such Guarantor 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 Guarantor Senior Indebtedness and,
subject to the provisions of Article 6 of this Indenture, the Trustee shall not
be liable to any holder of such Guarantor Senior Indebtedness if it shall pay
over or deliver to Holders of the Securities of such series, the Guarantor or
any other Person money or assets to which any holder of such Guarantor Senior
Indebtedness shall be entitled by virtue of this Article 18 or otherwise.
Nothing in this Article 18 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
Section 18.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Guarantor Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any
109
<PAGE>
act or failure to act on the part of the Guarantor, or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Guarantor
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Guarantor 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 18 or the obligations hereunder of the
Holders of the Securities of such series to the holders of such Guarantor 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
Guarantor Senior Indebtedness, or otherwise amend or supplement in any manner
such Guarantor Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Guarantor Senior Indebtedness is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing such Guarantor Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of such Guarantor Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Guarantor and any other Person.
* * *
110
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] ACE INA HOLDINGS INC.
Attest:
By________________________________________
Name:
Title:
[SEAL] ACE LIMITED,
as Guarantor
Attest:
By________________________________________
Name:
Title:
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Attest:
By________________________________________
Name:
Title:
111
<PAGE>
Exhibit 4.9
CERTIFICATE OF TRUST
OF
ACE CAPITAL TRUST I
THIS Certificate of Trust of ACE Capital Trust I (the "Trust"), dated
as of May 19, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S) 3801, et seq.).
- ------- -- ---
1. Name. The name of the business trust formed hereby is ACE
----
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust with a principal place of business in the State of Delaware is Bank
One Delaware, Inc., Three Christina Centre, 201 North Walnut Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing with the Secretary of the State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
THE FIRST NATIONAL BANK OF CHI CAGO, not in its individual
capacity but solely as trustee of the Trust
By: /s/ SANDRA L. CARUBA
_______________________________________________
Name: SANDRA L. CARUBA
Title: VICE PRESIDENT
BANK ONE DELAWARE, INC., not in its individual capacity but
solely as trustee of the Trust
By: /s/ SANDRA L. CARUBA
_______________________________________________
Name: SANDRA L. CARUBA
Title: VICE PRESIDENT
____________________________________________
ROBERT A. BLEE, not in his individual capacity
but solely as trustee of the Trust
<PAGE>
Exhibit 4.10
CERTIFICATE OF TRUST
OF
ACE CAPITAL TRUST II
THIS Certificate of Trust of ACE Capital Trust II (the "Trust"), dated
as of May 19, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S) 3801, et seq.).
- ------- -- ---
1. Name. The name of the business trust formed hereby is ACE
----
Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust with a principal place of business in the State of Delaware is Bank
One Delaware, Inc., Three Christina Centre, 201 North Walnut Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing with the Secretary of the State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
THE FIRST NATIONAL BANK OF CHI CAGO, not in its individual
capacity but solely as trustee of the Trust
By: /s/ SANDRA L. CARUBA
______________________________________________________
Name: SANDRA L. CARUBA
Title: VICE PRESIDENT
BANK ONE DELAWARE, INC., not in its individual capacity but
solely as trustee of the Trust
By:
______________________________________________________
Name: SANDRA L. CARUBA
Title: VICE PRESIDENT
_________________________________________________________
ROBERT A. BLEE, not in his individual capac ity but solely
as trustee of the Trust
<PAGE>
Exhibit 4.11
CERTIFICATE OF TRUST
OF
ACE CAPITAL TRUST III
THIS Certificate of Trust of ACE Capital Trust III (the "Trust"),
dated as of May 19, 1999, is being duly executed and filed by the undersigned,
as trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S) 3801, et seq.).
- ------- -- ---
1. Name. The name of the business trust formed hereby is ACE
----
Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust with a principal place of business in the State of Delaware is Bank
One Delaware, Inc., Three Christina Centre, 201 North Walnut Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing with the Secretary of the State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
THE FIRST NATIONAL BANK OF CHI CAGO, not in its individual
capacity but solely as trustee of the Trust
By: /s/ SANDRA L. CARUBA
-----------------------------------------------
Name: SANDRA L. CARUBA
Title: VICE PRESIDENT
BANK ONE DELAWARE, INC., not in its individual capacity but
solely as trustee of the Trust
By: /s/ SANDRA L. CARUBA
-----------------------------------------------
Name: SANDRA L. CARUBA
Title: VICE PRESIDENT
___________________________________________________
ROBERT A. BLEE, not in his individual capac ity but solely
as trustee of the Trust
<PAGE>
Exhibit 4.12
TRUST AGREEMENT
OF
ACE CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of May 19, 1999 (this "Trust Agreement"),
by and among ACE Limited, a Cayman Islands company, as Depositor (the
"Depositor"), and The First National Bank of Chicago, a national banking
association, as property trustee (the "Property Trustee"), Bank One Delaware,
Inc., a Delaware corporation, as trustee (the "Delaware Trustee"), and Robert A.
Blee, an individual, as trustee (the "Administrative Trustee") (the Property
Trustee, the Delaware Trustee and the Administrative Trustee are hereinafter
collectively referred to as the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "ACE Capital Trust I" (the
"Trust"), in which name the Trustees or the Depositor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this document
------- -- ---
constitute the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution
and delivery of such amended and restated Trust Agreement, the Trustees shall
not have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Depositor, as depositor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (each as herein defined), on
behalf of the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating
<PAGE>
to the Preferred Securities of the Trust required to be filed pursuant to the
1933 Act, and (c) a Registration Statement on Form 8-A or other appropriate form
(the "1934 Act Registration Statement"), including all pre-effective and post-
effective amendments thereto, relating to the registration of the Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) if and at such time as determined by the Depositor, to file with the New
York Stock Exchange or other exchange, or the National Association of Securities
Dealers ("NASD"), and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities
of the Trust to be listed on the New York Stock Exchange or such other exchange,
or the NASD's Nasdaq National Market; (iii) to file and execute on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
that shall be necessary or desirable to register the Preferred Securities of the
Trust under the securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities of the Trust; and (v) to
execute, deliver and perform on behalf of the Trust an underwriting agreement
with one or more underwriters relating to the offering of the Preferred
Securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any trustee of the
Trust may resign upon thirty days' prior notice to the Depositor.
7. Bank One Delaware, Inc., in its capacity as Trustee, shall not have
<PAGE>
the powers or duties of the Trustees set forth herein (except as may be required
under the Business Trust Act) and shall be a trustee hereunder for the sole and
limited purpose of fulfilling the requirements of Section 3807(a) of the
Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
ACE LIMITED, as Depositor
By:
----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, not in
its individual capacity but solely as
trustee of the Trust
By:
---------------------------------------
Name
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee of
the Trust
By:
---------------------------------------
Name:
Title:
____________________________________
ROBERT A. BLEE, not in his individual
capacity but solely as trustee of the Trust
<PAGE>
EXHIBIT 4.13
TRUST AGREEMENT
OF
ACE CAPITAL TRUST II
THIS TRUST AGREEMENT is made as of May 19, 1999 (this "Trust Agreement"),
by and among ACE Limited, a Cayman Islands company, as Depositor (the
"Depositor"), and The First National Bank of Chicago, a national banking
association, as property trustee (the "Property Trustee"), Bank One Delaware,
Inc., a Delaware corporation, as trustee (the "Delaware Trustee"), and Robert A.
Blee, an individual, as trustee (the "Administrative Trustee") (the Property
Trustee, the Delaware Trustee and the Administrative Trustee are hereinafter
collectively referred to as the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "ACE Capital Trust II" (the
"Trust"), in which name the Trustees or the Depositor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this document
------- -- ---
constitute the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution
and delivery of such amended and restated Trust Agreement, the Trustees shall
not have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Depositor, as depositor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (each as herein defined), on
behalf of the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating
<PAGE>
to the Preferred Securities of the Trust required to be filed pursuant to the
1933 Act, and (c) a Registration Statement on Form 8-A or other appropriate form
(the "1934 Act Registration Statement"), including all pre-effective and post-
effective amendments thereto, relating to the registration of the Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) if and at such time as determined by the Depositor, to file with the New
York Stock Exchange or other exchange, or the National Association of Securities
Dealers ("NASD"), and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities
of the Trust to be listed on the New York Stock Exchange or such other exchange,
or the NASD's Nasdaq National Market; (iii) to file and execute on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
that shall be necessary or desirable to register the Preferred Securities of the
Trust under the securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities of the Trust; and (v) to
execute, deliver and perform on behalf of the Trust an underwriting agreement
with one or more underwriters relating to the offering of the Preferred
Securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any trustee of the
Trust may resign upon thirty days' prior notice to the Depositor.
7. Bank One Delaware, Inc., in its capacity as Trustee, shall not have
the
<PAGE>
powers or duties of the Trustees set forth herein (except as may be required
under the Business Trust Act) and shall be a trustee hereunder for the sole and
limited purpose of fulfilling the requirements of Section 3807(a) of the
Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
ACE LIMITED, as Depositor
By:
------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, not in its individual capacity
but solely as trustee of the Trust
By:
------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee
of the Trust
By:
------------------------------
Name:
Title:
------------------------------------
ROBERT A. BLEE, not in his individual
capacity but solely as trustee of the
Trust
<PAGE>
EXHIBIT 4.14
TRUST AGREEMENT
OF
ACE CAPITAL TRUST III
THIS TRUST AGREEMENT is made as of May 19, 1999 (this "Trust Agreement"),
by and among ACE Limited, a Cayman Islands company, as Depositor (the
"Depositor"), and The First National Bank of Chicago, a national banking
association, as property trustee (the "Property Trustee"), Bank One Delaware,
Inc., a Delaware corporation, as trustee (the "Delaware Trustee"), and Robert A.
Blee, an individual, as trustee (the "Administrative Trustee") (the Property
Trustee, the Delaware Trustee and the Administrative Trustee are hereinafter
collectively referred to as the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "ACE Capital Trust III"
(the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this document
------- -- ---
constitute the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution
and delivery of such amended and restated Trust Agreement, the Trustees shall
not have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Depositor, as depositor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (each as herein defined), on
behalf of the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating
<PAGE>
to the Preferred Securities of the Trust required to be filed pursuant to the
1933 Act, and (c) a Registration Statement on Form 8-A or other appropriate form
(the "1934 Act Registration Statement"), including all pre-effective and post-
effective amendments thereto, relating to the registration of the Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) if and at such time as determined by the Depositor, to file with the New
York Stock Exchange or other exchange, or the National Association of Securities
Dealers ("NASD"), and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities
of the Trust to be listed on the New York Stock Exchange or such other exchange,
or the NASD's Nasdaq National Market; (iii) to file and execute on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
that shall be necessary or desirable to register the Preferred Securities of the
Trust under the securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities of the Trust; and (v) to
execute, deliver and perform on behalf of the Trust an underwriting agreement
with one or more underwriters relating to the offering of the Preferred
Securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, NASD, or state securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any trustee of the Trust at any time. Any trustee of the
Trust may resign upon thirty days' prior notice to the Depositor.
7. Bank One Delaware, Inc., in its capacity as Trustee, shall not have
the
<PAGE>
powers or duties of the Trustees set forth herein (except as may be required
under the Business Trust Act) and shall be a trustee hereunder for the sole and
limited purpose of fulfilling the requirements of Section 3807(a) of the
Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
ACE LIMITED, as Depositor
By:
--------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, not in its individual capacity
but solely as trustee of the Trust
By:
--------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee
of the Trust
By:
--------------------------------
Name:
Title:
------------------------------------
ROBERT A. BLEE, not in his individual
capacity but solely as trustee of the
Trust
<PAGE>
Exhibit 4.15
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
ACE INA HOLDINGS INC., AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE
BANK ONE DELAWARE, INC.,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF _________________, 1999
ACE CAPITAL TRUST I
================================================================================
<PAGE>
Table of Contents
Page
----
ARTICLE I. DEFINED TERMS
SECTION 1.1 DEFINITIONS ................................................... 2
ARTICLE II. ESTABLISHMENT OF THE TRUST
SECTION 2.1 NAME .......................................................... 10
SECTION 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS ...................................................... 10
SECTION 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES ...................................................... 10
SECTION 2.4 ISSUANCE OF THE PREFERRED SECURITIES .......................... 10
SECTION 2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF DEBENTURES ........................................ 11
SECTION 2.6 DECLARATION OF TRUST .......................................... 11
SECTION 2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS .............. 12
SECTION 2.8 ASSETS OF TRUST ............................................... 15
SECTION 2.9 TITLE TO TRUST PROPERTY ....................................... 15
ARTICLE III. PAYMENT ACCOUNT
SECTION 3.1 PAYMENT ACCOUNT ............................................... 16
ARTICLE IV. CERTAIN TERMS OF THE TRUST SECURITIES
SECTION 4.1 DISTRIBUTIONS ................................................. 16
SECTION 4.2 REDEMPTION .................................................... 18
SECTION 4.3 SUBORDINATION OF COMMON SECURITIES ............................ 19
SECTION 4.4 PAYMENT PROCEDURES ............................................ 20
SECTION 4.5 TAX RETURNS AND REPORTS ....................................... 20
SECTION 4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST .................. 21
SECTION 4.7 PAYMENTS UNDER INDENTURE ...................................... 21
ARTICLE V. TRUST SECURITIES CERTIFICATES ................ 21
SECTION 5.1 INITIAL OWNERSHIP ............................................. 21
SECTION 5.2 THE TRUST SECURITIES CERTIFICATES ............................. 21
SECTION 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES ....... 22
SECTION 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES CERTIFICATES ....................................... 22
SECTION 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES .................................................. 22
SECTION 5.6 PERSONS DEEMED SECURITYHOLDERS ................................ 23
SECTION 5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES......... 23
SECTION 5.8 MAINTENANCE OF OFFICE OR AGENCY ............................... 24
SECTION 5.9 APPOINTMENT OF PAYING AGENT ................................... 24
SECTION 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR .................. 24
SECTION 5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON
SECURITIES CERTIFICATE ........................................ 25
i
<PAGE>
SECTION 5.12 NOTICES TO CLEARING AGENCY ................................... 26
SECTION 5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES ................. 26
SECTION 5.14 RIGHTS OF SECURITYHOLDERS .................................... 27
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 LIMITATIONS ON VOTING RIGHTS .................................. 29
SECTION 6.2 NOTICE OF MEETINGS ............................................ 30
SECTION 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS ......................... 30
SECTION 6.4 VOTING RIGHTS ................................................. 31
SECTION 6.5 PROXIES, ETC .................................................. 31
SECTION 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT ...................... 31
SECTION 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES ..................... 31
SECTION 6.8 ACTS OF SECURITYHOLDERS ....................................... 32
SECTION 6.9 INSPECTION OF RECORDS ......................................... 32
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE ...................................... 33
SECTION 7.2 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR ................... 34
ARTICLE VIII. THE TRUSTEES ...................... 34
SECTION 8.1 CERTAIN DUTIES AND RESPONSIBILITIES ........................... 34
SECTION 8.2 CERTAIN NOTICES ............................................... 36
SECTION 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE ............................ 36
SECTION 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES ........ 38
SECTION 8.5 MAY HOLD SECURITIES ........................................... 38
SECTION 8.6 COMPENSATION; INDEMNITY; FEES ................................. 38
SECTION 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES .. 39
SECTION 8.8 CONFLICTING INTERESTS ......................................... 39
SECTION 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE .............................. 40
SECTION 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR ............ 41
SECTION 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR ....................... 42
SECTION 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS ...................................................... 43
SECTION 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR,
DEBENTURE ISSUER OR TRUST ..................................... 43
SECTION 8.14 REPORTS BY PROPERTY TRUSTEE .................................. 44
SECTION 8.15 REPORTS TO THE PROPERTY TRUSTEE .............................. 44
SECTION 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT ............. 44
SECTION 8.17 NUMBER OF TRUSTEES ........................................... 44
SECTION 8.18 DELEGATION OF POWER .......................................... 45
ARTICLE IX. DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
SECTION 9.1 DISSOLUTION UPON EXPIRATION DATE .............................. 45
SECTION 9.2 EARLY DISSOLUTION ............................................. 45
SECTION 9.3 TERMINATION ................................................... 46
SECTION 9.4 LIQUIDATION ................................................... 46
ii
<PAGE>
SECTION 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST ..................................... 47
ARTICLE X. MISCELLANEOUS PROVISIONS
SECTION 10.1 LIMITATION OF RIGHTS OF SECURITY HOLDERS ..................... 49
SECTION 10.2 AMENDMENT .................................................... 49
SECTION 10.3 SEPARABILITY ................................................. 50
SECTION 10.4 GOVERNING LAW ................................................ 50
SECTION 10.5 PAYMENTS DUE ON NON-BUSINESS DAY ............................. 50
SECTION 10.6 SUCCESSORS ................................................... 50
SECTION 10.7 HEADINGS ..................................................... 51
SECTION 10.8 REPORTS, NOTICES AND DEMANDS ................................. 51
SECTION 10.9 AGREEMENT NOT TO PETITION .................................... 51
SECTION 10.10 TRUST INDENTURE ACT; CONFLICT WITH
TRUST INDENTURE ACT ............................ 52
SECTION 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE ................................................. 53
Exhibit A-1 CERTIFICATE OF TRUST OF ACE CAPITAL TRUST I
Exhibit A-2 ASSIGNMENT AND ASSUMPTION AGREEMENT AND
FIRST AMENDMENT
Exhibit B LETTER TO DTC PERTAINING TO THE TRUST ORIGINATED
PREFERRED SECURITIES
Exhibit C CERTIFICATE EVIDENCING COMMON SECURITIES OF ACE CAPITAL
TRUST I
Exhibit D AGREEMENT AS TO EXPENSES AND LIABILITIES
Exhibit E CERTIFICATE EVIDENCING PREFERRED SECURITIES OF ACE CAPITAL
TRUST I
iii
<PAGE>
ACE CAPITAL TRUST I
CERTAIN SECTIONS OF THIS TRUST AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE TRUST
ACT SECTION AGREEMENT SECTION
- --------------- -----------------
<S> <C>
ss.310(a)(1) ....................................... 8.7
(a) (2) ............................................ 8.7
(a) (3) ............................................ 8.9
(a) (4) ............................................ 2.7(a)(ii)
(b) ................................................ 8.8
ss. 311(a) ......................................... 8.13
(b) ................................................ 8.13
ss. 312(a) ......................................... 5.7
(b) ................................................ 5.7
(c) ................................................ 5.7
ss. 313(a) ......................................... 8.14(a)
(a)(4) ............................................. 8.14(b)
(b) ................................................ 8.14(b)
(c) ................................................ 10.8
(d) ................................................ 8.14(c)
ss.314(a) .......................................... 8.15
(b) ................................................ Not Applicable
(c)(1) ............................................. 8.16
(c)(2) ............................................. 8.16
(c) (3) ............................................ Not Applicable
(d) ................................................ Not Applicable
(e) ................................................ 1.1, 8.16
ss. 315(a) ......................................... 8.1(a), 8.3(a)
(b) ................................................ 8.2, 10.8
(c) ................................................ 8.1(a)
(d) ................................................ 8.1, 8.3
(e) ................................................ Not Applicable
ss.316(a) .......................................... Not Applicable
(a)(1)(A) .......................................... Not Applicable
(a)(1)(B) .......................................... Not Applicable
(a) (2) ............................................ Not Applicable
(b) ................................................ Not Applicable
(c) ................................................ 6.7
ss.317(a) (1) ...................................... Not Applicable
(a) (2) ............................................ Not Applicable
(b) ................................................ 5.9
ss.318(a) .......................................... 10.10
</TABLE>
- ----------
Note: This reconciliation and tie sheet shall not, for any purpose be deemed to
be a part of the Trust Agreement.
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________, 1999, among
(i) ACE INA HOLDINGS INC., a corporation duly organized and existing under the
laws of the State of Delaware (including any successors or assigns, the
"Depositor"), (ii) THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association duly organized and existing under the laws of the United States, as
property trustee (the "Property Trustee" and, in its individual capacity and not
in its capacity as Property Trustee, the "Bank"), (iii) BANK ONE DELAWARE, INC.,
a Delaware corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee,"), (iv) Robert A. Blee, an individual, and Christopher Z. Marshall, an
individual, each of whose address is c/o ACE USA, Inc., Six Concourse Parkway,
Suite 2500, Atlanta, Georgia 30328 (each an "Administrative Trustee" and
collectively, the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees are referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, ACE Limited, as original sponsor of the Trust (the "Original
Depositor") and certain of the Trustees (the "Original Trustees") have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of May 19, 1999 (the "Initial Trust Agreement"), and by the
execution by the Original Trustees and filing with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on May 19, 1999 (the
"Certificate of Trust"), attached as Exhibit A-1;
WHEREAS, the Original Depositor has assigned to the Depositor, and the
Depositor has assumed, all of the Original Depositor's right, title and interest
in and to, and its obligations as Trust sponsor under, the Initial Trust
Agreement, pursuant to the Assignment and Assumption Agreement and First
Amendment to the Trust Agreement dated as of _________, 1999 (the "Amendment"),
between the Original Depositor, the Depositor and the Original Trustees (the
Initial Trust Agreement as amended by the Amendment being hereinafter referred
to as the "Original Trust Agreement"), attached as Exhibit A-2; and
WHEREAS, the Depositor (as successor Trust sponsor) and the Trustees desire
to amend and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities by the Trust pursuant to the Underwriting Agreement, (iii)
the acquisition by the Trust from the Debenture Issuer (as hereinafter defined)
of all of the right, title and interest in the Debentures and (iv) the
appointment of additional Administrative Trustees;
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, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
<PAGE>
ARTICLE I.
DEFINED TERMS
SECTION 1.1 DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amounts" means, with respect to Trust Securities of a given
Liquidation Amount, for a given period, the amount of any Additional Interest
and any Additional Amounts (as defined in the Indenture) paid by the Debenture
Issuer or the Debenture Guarantor on a Like Amount of Debentures for such
period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Sums" has the meaning specified in Section 10.9 of the
Indenture.
"Administrative Trustee" means each of ________________________, and
_____________________, solely in such Person's capacity as Administrative
Trustee of the Trust and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
2
<PAGE>
"Bankruptcy Event" means, with respect to any Person: (a) the entry of a
decree or order by a court having jurisdiction in the premises judging such
Person a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of such
Person or of any substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or (b) the
institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or the consent by
it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or similar official) of such Person
or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Law" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution, certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, delivered to the appropriate Trustee or Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial interest
in the Preferred Securities Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and DTC, as the initial Clearing Agency, dated as of the Closing Date,
relating to the Trust Securities Certificates, substantially in the form
attached as Exhibit B, as the same may be amended and supplemented from time to
time.
"Certificate of Trust" has the meaning specified in the recitals to this
Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. DTC
will be the initial Clearing Agency.
3
<PAGE>
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Time" has the meaning specified in the Underwriting Agreement,
which date is also the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $____ and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office " means the principal office of the Property
Trustee located in Chicago, Illinois.
"Date of Delivery" has the meaning specified in the Underwriting Agreement.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Guarantor" means ACE Limited, a Cayman Islands company, in its
capacity as guarantor under the Indenture, and its successors.
"Debenture Issuer" means ACE INA Holdings Inc., a Delaware corporation, in
its capacity as the issuer of the Debentures under the Indenture, and its
successors.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, in its capacity as trustee under the Indenture, or any successor trustee
appointed as therein provided.
"Debentures" means the aggregate principal amount of the Debenture Issuer's
__% Junior Subordinated Deferrable Interest Debentures due _________, issued
pursuant to the Indenture.
4
<PAGE>
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificates as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the first paragraph of this Trust Agreement solely in its capacity
as Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event 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): (a) the occurrence of a Debenture Event of
Default; or (b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or (c) default by the Property Trustee in the payment
of any Redemption Price of any Trust Security when it becomes due and payable;
or (d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or (e) the
occurrence of a Bankruptcy Event with respect to the Property Trustee and the
failure by the Depositor to appoint a successor Property Trustee within 60 days
thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
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"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Preferred Securities Guarantor and The First National Bank of Chicago, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Subordinated Indenture, dated as of ____________,
1999, among the Debenture Issuer, the Debenture Guarantor and the Debenture
Trustee, as trustee, as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $____ per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a dissolution and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman, the President, any Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Depositor, that complies with the requirements of Section 314(e) of the
Trust Indenture Act and is delivered to the appropriate Trustee or Trustees.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor, as the case may be, or
other counsel who shall be reasonably acceptable to the Property Trustee, that,
if required by the Trust Indenture Act, complies with the requirements of
Section 314(e) of the Trust Indenture Act.
"Original Depositor" has the meaning specified in the recitals to this
Trust Agreement.
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"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Original Trustees" has the meaning specified in the recitals to this Trust
Agreement.
"Outstanding," when used with respect to Preferred Securities, means, as of
the date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13, unless there
shall have been presented to the Property Trustee proof satisfactory
to it that such Preferred Security is held by a bona fide purchaser in
whose hand such Preferred Security is a valid obligation of the Trust;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or are present at a meeting of Securityholders for quorum purposes, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee, shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
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"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Paying Agent in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $____ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit E.
"Preferred Securities Guarantor" means ACE Limited, a Cayman Islands
Company, in its capacity as guarantor under the Guarantee, and its successors.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, and any Additional Amounts paid by the Debenture Issuer or the Debenture
Guarantor upon the concurrent redemption of a Like Amount of Debentures,
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
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"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Securities is registered in the Securities Register; any such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that in determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, then for purposes of any such determination, so long as
Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Time of Delivery" means, collectively, the Closing Time and each Date of
Delivery.
"Trust" means the Delaware business trust created by the Original Trust
Agreement and the Certificate of Trust and continued hereby and identified on
the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
__________, 1999, among the Trust, the Depositor, ACE Limited and the
Underwriters named therein.
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ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.1 NAME.
The Trust continued hereby shall be known as "ACE Capital Trust I," as such
name may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the other Trustees, in
which name the Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue and be sued.
SECTION 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is Three
Christina Centre, 201 North Walnut Street, Wilmington, Delaware 19801, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Depositor. The principal executive office of the Trust is
c/o ACE USA Inc., Six Concourse Parkway, Suite 2500, Atlanta, Georgia 30328.
SECTION 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Original Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4 ISSUANCE OF THE PREFERRED SECURITIES.
The Depositor, on behalf of the Trust and as successor Trust sponsor under
the Original Trust Agreement, has executed and delivered the Underwriting
Agreement. At the Closing Time, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of ____________ Preferred Securities having an
aggregate Liquidation Amount of $___________, against receipt of such aggregate
purchase price of such Preferred Securities of $________, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. On each
Date of Delivery, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named in
the Underwriting Agreement Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of up
to __________ Preferred Securities (less such number of Preferred Securities
evidenced by Preferred Securities Certificates executed and delivered on any
prior Dates
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of Delivery) having an aggregate Liquidation Amount of up to $__________ (less
the aggregate Liquidation Amount of any Preferred Securities evidenced by
Preferred Securities Certificates executed and delivered on any prior Dates of
Delivery), against receipt of such aggregate purchase price of such Preferred
Securities of $___________ (less the aggregate Liquidation Amount of any
Preferred Securities evidenced by Preferred Securities Certificates executed and
delivered on any prior Dates of Delivery), which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF
DEBENTURES.
(a) At the Closing Time, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of _________ Common Securities having an aggregate Liquidation
Amount of $_________, against payment by the Depositor of such amount, which
amount such Administrative Trustee shall promptly deliver to the Property
Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Trust, shall subscribe to and purchase from the Debenture Issuer Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Debenture Issuer the sum of $__________. On each Date of Delivery, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of up to
__________ Common Securities (less such number of Common Securities evidenced by
Common Securities Certificates executed and delivered on any prior Dates of
Delivery) having an aggregate Liquidation Amount of up to $__________ (less the
aggregate Liquidation Amount of any Common Securities evidenced by Common
Securities Certificates executed and delivered on any prior Dates of Delivery),
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
(b) At the Closing Time and on each Date of Delivery, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Debenture Issuer Debentures, registered in the name of the Trust and having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities and Common Securities issued and sold on such date, and, in
satisfaction of the purchase price for such Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Debenture Issuer the amount received
on such date from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4.
SECTION 2.6 DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures,
and (b) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust
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Property upon and subject to the conditions set forth herein for the benefit of
the Securityholders. The Administrative Trustees shall have all rights, powers
and duties set forth herein and in accordance with applicable law with respect
to accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Trustees set forth herein except as required
by the Delaware Business Trust Act. The Delaware Trustee shall be one of the
Trustees of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Delaware Business Trust Act.
SECTION 2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section and Article VIII, and in accordance with the
following provisions (i) and (ii), the Administrative Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and to perform all
acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each of the Administrative Trustees, acting
singly or together, shall have the power and authority to act on behalf of
the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) to assist in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;
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(F) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(G) the establishment of a record date for any of the purposes
contemplated by Section 6.7 hereof;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any or
all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
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(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder); and
(J) engaging in such ministerial activities as shall be
necessary, appropriate, convenient or incidental to effect the
repayment of the Preferred Securities and the Common Securities to the
extent the Debentures mature or are redeemed.
Except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not cause the Trust to (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take any action that
would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to
the Trustees of actions they must take on behalf of the Trust, and the
preparation
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for execution and filing of any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on behalf
of the Trust of an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) the taking of any other actions deemed by the Depositor to be
necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act or
classified as an association taxable as a corporation for United States Federal
income tax purposes and so that the Debentures will be treated as indebtedness
of the Debenture Issuer for United States Federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in their discretion to be necessary or desirable for such purposes,
as long as such action does not adversely affect in any material respect the
interests of the Holders of the Preferred Securities.
SECTION 2.8 ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9 TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
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ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
CERTAIN TERMS OF THE TRUST SECURITIES
SECTION 4.1 DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the payment
of Distributions. Distributions shall accrue from __________, ____, and shall be
payable quarterly in arrears on _________, _______, ______ and ________ of each
year, commencing on __________, _____, except as otherwise described below. The
Debenture Issuer has the right under the Indenture, at any time and from time to
time, to defer payments of interest for such period or periods as may be
specified with respect to the Debentures (each, an "Extension Period"), on the
terms and conditions specified in the Indenture. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate at the rate set forth in paragraph (b)
of this Section 4.1, together with additional distributions thereon (to the
extent permitted by applicable law) at the rate at which Additional Interest is
then accruing on the Debentures, compounded quarterly during any such Extension
Period. If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall be
made on the next succeeding day that is a Business Day (and without any
additional distributions or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date such payment was
originally payable (each date on which distributions are payable in accordance
with this Section 4.1(a), a "Distribution Date").
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(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable at a rate of __% per annum of the Liquidation Amount
of the Trust Securities. The term "Distributions" as used herein includes such
cash distributions and any accumulated or additional distributions that are
payable hereunder unless otherwise stated. The amount of Distributions payable
for any full or partial period shall be computed on the basis of a 360-day year
of twelve 30-day months. The amount of Distributions payable for any period
shall include Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register at the close of business on the relevant record date, which, as long as
the Preferred Securities remain in book-entry only form, shall be the date one
Business Day immediately preceding such Distribution Date. The relevant record
dates for the Common Securities shall be the same record dates as for the
Preferred Securities. If the Preferred Securities shall not continue to remain
in book-entry only form or are not in book-entry only form at issuance, the
relevant record dates for the Preferred Securities shall be the date 15 days
prior to the relevant Distribution Date, which Distribution Dates shall
correspond to the interest payment dates on the Debentures. Distributions
payable on any Trust Securities that are not punctually paid on any Distribution
Date, as a result of the Debenture Issuer (or the Debenture Guarantor on its
behalf) having failed to make an interest payment under the Debentures, will
cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Trust Securities are
registered on the special record date or other specified date for determining
Debentureholders entitled to such defaulted interest established in accordance
with the Indenture.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed pro rata among the Holders of the Trust Securities. A reference
herein to any payment, distribution or treatment as being "pro rata" shall mean
pro rata to each Holder of Trust Securities according to the aggregate
Liquidation Amount of the Trust Securities held by the relevant Holder in
relation to the aggregate Liquidation Amount of all Trust Securities outstanding
unless, in relation to a payment, a Debenture Event of Default has occurred and
is continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to the
aggregate Liquidation Amount of Preferred Securities held by the relevant Holder
relative to the aggregate Liquidation Amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate Liquidation Amount of Common Securities held by the relevant
Holder relative to the aggregate Liquidation Amount of all Common Securities
outstanding.
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SECTION 4.2 REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at a price per Trust Security equal to the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption (which notice
shall be irrevocable) in respect of any Preferred Securities, then, by 12:00
noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the relevant Persons' accounts at such Clearing Agency on
the applicable Redemption Date. If the Preferred Securities are no longer in
book-entry-only form, and in the case of the Common Securities, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Trust Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities
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on the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit, all
rights of Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption Price
and any Distributions payable on or prior to the Redemption Date, but without
interest, and such Securities will cease to be outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Preferred Securities Guarantor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made
to the recordholders thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be one Business Day
prior to the relevant Redemption Date; provided, however, that in the event that
the Preferred Securities do not remain in book-entry-only form, the relevant
record date shall be the date fifteen days prior to the relevant Redemption
Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $____ or an integral multiple of $____ in excess thereof)
of the Liquidation Amount of Preferred Securities of a denomination larger than
$____. The Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
SECTION 4.3 SUBORDINATION OF COMMON SECURITIES.
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(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made, subject to Section 4.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any Event
of Default resulting from a Debenture Event of Default shall have occurred and
be continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
SECTION 4.4 PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
SECTION 4.5 TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service Form required to be filed in respect of the Trust in
each taxable year of the Trust and
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(b) prepare and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority.
SECTION 4.7 PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (and any Owner
with respect thereto) has directly received pursuant to Section 5.8 of the
Indenture.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1 INITIAL OWNERSHIP.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2 THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of $____ Liquidation Amount and integral multiples of $____ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $____ Liquidation Amount and integral multiples of $____ in
excess thereof. The Trust Securities Certificates shall be executed on behalf of
the Trust by manual signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
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SECTION 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
At each Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its Chairman of the Board, a
Vice Chairman, its President, a Vice President or its Treasurer and attested by
its Secretary or one of its Assistant Secretaries, without further corporate
action by the Depositor, in authorized denominations.
SECTION 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES
CERTIFICATES.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register"). The registrar
designated by the Depositor (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Preferred Securities Certificates and Common Securities Certificates (subject
to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. The Bank shall be the initial Securities Registrar. Upon
surrender for registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to Section 5.8, the Administrative
Trustees or any one of them shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities after such Preferred Securities have been called for
redemption. At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 5.8. Every Preferred Securities
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory to
an Administrative Trustee and the Securities Registrar duly executed by the
Holder or his attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by an Administrative Trustee in
accordance with customary practice. Registration of transfers or exchanges of
Preferred Securities Certificates shall be effected without service charge by or
on behalf of the Trust, but the Securities Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such transfer or exchange.
SECTION 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction,
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loss or theft of any Trust Securities Certificate and (b) there shall be
delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Trust Securities Certificate shall have
been acquired by a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust shall execute and make available for delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an undivided beneficial interest in the assets
of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.6 PERSONS DEEMED SECURITYHOLDERS.
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Administrative Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving distributions and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
SECTION 5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees shall furnish or cause to be furnished (x) to
the Depositor, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request therefor from
the Property Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in such form as
the Depositor or the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the previous
six months of not less than 25% of the Outstanding aggregate Liquidation Amount
apply in writing to any Administrative Trustee, and such application states that
the applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
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SECTION 5.8 MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain in Chicago, Illinois, an office
or offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities and the Trust
Agreement may be served. The Administrative Trustees initially designate The
First National Bank of Chicago, One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126; Attention: Corporate Trust Department, as the principal
corporate trust office for such purposes. The Administrative Trustees shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency.
SECTION 5.9 APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company that is acceptable to the Property Trustee and the Depositor) to
act as Paying Agent. The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Paying Agent appointed hereunder and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
SECTION 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At each Time of Delivery, the Depositor shall acquire and retain beneficial
and record ownership of all of the Common Securities then issued by the Trust,
in an amount equal to at least 3% of the total capital of the Trust, at the same
time as the Preferred Securities are issued and sold.
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The aggregate Liquidation Amount of the Common Securities at any time shall not
be less than 3% of the total capital of the Trust. To the fullest extent
permitted by law, other than a transfer in connection with a consolidation or
merger of the Depositor into another corporation, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT (AS DEFINED BELOW)".
SECTION 5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON SECURITIES
CERTIFICATE.
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Preferred Securities Certificate or Certificates shall initially be
registered on the Securities Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no beneficial owner will receive a Definitive
Preferred Securities Certificate representing such beneficial owner's interest
in such Preferred Securities, except as provided in Section 5.13. Except for
Definitive Preferred Securities Certificates as specified herein, unless and
until Definitive Preferred Securities Certificates have been issued to
beneficial owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including the
payment of the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities and the giving of instructions or directions to Owners
of Book-Entry Preferred Securities) as the sole Holder of Book-Entry
Preferred Securities and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants; provided,
that solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided
for in this Trust Agreement, so long as Definitive Preferred Security
Certificates have not been issued, the Trustees may conclusively rely on,
and shall be protected in relying on, any written instrument (including a
proxy) delivered to the Trustees by the Clearing Agency setting forth the
Owners' votes or assigning the right to vote on any matter to any other
Persons either in whole or in part. Pursuant to the Certificate
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Depository Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.13, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12 NOTICES TO CLEARING AGENCY.
(a) To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to act as clearing agency with respect to
the Preferred Securities Certificates, and the Depositor fails to appoint a
qualified successor within 90 days, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (c) after the occurrence of a Debenture Event of Default,
Owners of Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount of the Outstanding
Preferred Securities advise the Property Trustee in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Property Trustee shall notify the Clearing Agency and the Clearing Agency shall
notify all Owners of Preferred Securities Certificates and the other Trustees of
the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Property Trustee of the
typewritten Preferred Securities Certificate or Certificates representing the
Book Entry Preferred Securities Certificates by the Clearing Agency, accompanied
by registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Preferred Securities Certificates in accordance
with the instructions of the Clearing Agency. Neither the Securities Registrar
nor the Trustees shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Securities Certificates,
the Trustees shall recognize the Holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative Trustees or any one of
them.
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SECTION 5.14 RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Debenture
Issuer, the Debenture Guarantor, the Debenture Trustee and the Property Trustee;
and upon any such declaration such principal amount of and the accrued interest
on all of the Debentures shall become immediately due and payable, provided that
the payment of principal, interest, and any other amounts payable with respect
to such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding, by written notice to the Debenture Issuer, the
Debenture Guarantor, the Debenture Trustee and the Property Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Debenture Issuer or the Debenture Guarantor has paid or
deposited with the Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest) on, and any other Additional Amounts with respect
to, all of the Debentures,
(B) the principal of and premium on any Debentures 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 the Debentures,
(C) to the extent the 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 the Debentures, and
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(D) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee, its agents and counsel and all
other amounts due the Debenture Trustee under the Indenture; and
(ii) all Events of Default with respect to the Debentures, other than
the non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to the Debentures which have become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
The Holders of not less than a majority in Liquidation Amount of the
Preferred Securities then Outstanding may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default (i) in the payment of principal of, any premium or interest (including
any Additional Interest) on, or any other Additional Amounts with respect to,
the Debentures or (ii) in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Debenture.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which are represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, any Holder of Preferred Securities shall have the right, upon
a Debenture Event of Default specified in Section 5.1(1) or 5.1(2) of the
Indenture, to institute directly a proceeding against the Debenture Issuer or
the Debenture Guarantor, as the case may be, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of the principal of, and
any premium and (subject to the provisions of the Indenture) interest (including
any Additional Interest) on, and any other
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Additional Amounts with respect to, such Debentures having a principal amount
equal to the Liquidation Amount of the Preferred Securities of such Holder (a
"Direct Action"). In connection with any such Direct Action, the rights of the
Holders of Common Securities will be subrogated to the rights of any Holder of
Preferred Securities to the extent of any payment made by the Debenture Issuer
or the Debenture Guarantor, as the case may be, to such Holder of Preferred
Securities as a result of such Direct Action. Except as set forth in Section
5.14(b) and (c), or as otherwise contemplated by the Indenture, the Holders of
Preferred Securities shall have no right to exercise directly any right or
remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2 and
in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not
(i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such Debentures,
(ii) waive any past default which is waivable under Section 5.13 of
the Indenture,
(iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable, or
(iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
majority in Liquidation Amount of all Outstanding Preferred Securities;
provided, however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of each Holder
of Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
by a subsequent vote of the Holders of Preferred Securities. The Property
Trustee shall notify all Holders of the Preferred Securities of any notice of
default received from the Debenture Trustee with respect to
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the Debentures. In addition to obtaining the foregoing approvals of the Holders
of the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
rendered by counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for United
States Federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect,
(i) any action that would adversely affect in any material respect the
powers, preferences or special rights of the Preferred Securities, whether
by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other
than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. No amendment to
this Trust Agreement may be made if, as a result of such amendment, the
Trust would be classified as an association taxable as a corporation for
United States federal income tax purposes.
SECTION 6.2 NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which Preferred Securityholders are entitled to vote. Preferred
Securityholders of record of 50% of the Outstanding Preferred Securities (based
upon their Liquidation Amount), present in person or by proxy, shall constitute
a quorum at any meeting of Securityholders. If a quorum is present at a meeting,
an affirmative vote by the Preferred Securityholders of record present, in
person or by proxy, holding a majority of the Preferred Securities (based upon
their Liquidation Amount) held by the Preferred Securityholders of record
present, either in person or by proxy, at such meeting
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shall constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
SECTION 6.4 VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $____ of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
SECTION 6.5 PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any required approval or action which may be given or taken by
Securityholders at a meeting convened for such purpose may be given or taken
without a meeting and without prior notice if Securityholders holding a majority
of all Outstanding Trust Securities (based upon their Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing.
SECTION 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or to act by written consent, or to
participate in any distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
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SECTION 6.8 ACTS OF SECURITYHOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section. The fact and
date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient. The ownership of Preferred
Securities shall be proved by the Securities Register. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the
Securityholder of any Trust Security shall bind every future Securityholder of
the same Trust Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Trust Security. Without limiting the foregoing, a
Securityholder entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such Liquidation Amount. If any dispute shall arise between the
Securityholders and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
SECTION 6.9 INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
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ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and solely as each such representation or warranty applies to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Property Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States, and
the Delaware Trustee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust Agreement,
and, in the case of the Delaware Trustee, satisfies for the Trust Section 3807
of the Delaware Business Trust Act;
(c) this Trust Agreement has been duly authorized, executed and delivered
by each of the Property Trustee and the Delaware Trustee and constitutes the
respective valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Property Trustee
and the Delaware Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Property Trustee or the
Delaware Trustee, as the case may be, and does not require any approval of
stockholders of the Property Trustee or the Delaware Trustee, and such
execution, delivery and performance will not (i) violate the Property Trustee's
or the Delaware Trustee's Charter or By-laws, (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee, as the case may be, is a party or by which it
is bound, or (iii) violate any law, governmental rule or regulation of the
United States or the State of Delaware, as the case may be, governing the
corporate, banking or trust powers of the Property Trustee or the Delaware
Trustee (as appropriate in context) or any order, judgment or decree applicable
to the Property Trustee or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee, as the case may be, of this Trust Agreement nor
the consummation of any of the
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transactions by the Property Trustee or the Delaware Trustee, as the case may
be, contemplated herein or therein requires the consent or approval of, the
giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing Federal
law governing the corporate, banking or trust powers of the Property Trustee or
the Delaware Trustee, as appropriate in context, under the laws of the United
States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of Delivery on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, subject to the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
To the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities
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relating thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.1(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement and, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own bad faith, negligence or willful
misconduct, except that: (i) the Property Trustee undertakes to perform only
those duties specifically set forth in this Agreement, provided that, it must
exercise the same degree of care as a prudent person would exercise in the
conduct of his or her own affairs; (ii) the Property Trustee shall not be liable
for any error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts; (iii) the Property Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement; (iv) the Property Trustee's sole duty with
respect to the custody, safe keeping and physical preservation of the Debentures
and the Payment Account shall be to deal with such Property in a similar manner
as the Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property Trustee
under this Trust Agreement and the Trust Indenture Act; (v) the Property Trustee
shall not be liable for any interest on any money received by it except as it
may otherwise agree with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section 3.1 and
except to the extent otherwise required by law; and (vi) the Property Trustee
shall not be responsible for monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor.
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SECTION 8.2 CERTAIN NOTICES.
Within five (5) Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived. Within five
Business Days after the receipt of notice of the Debenture Issuer's exercise of
its right to defer the payment of interest on the Debentures pursuant to the
Indenture, the Administrative Trustees shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the Securityholders
and the Property Trustee, unless such exercise shall have been revoked.
SECTION 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor and the Property Trustee shall be fully
protected in acting in accordance with such instructions; provided, however,
that if the Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action
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hereunder, the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and rely upon
an Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall be responsible for its own
negligence or recklessness with respect to selection of any agent or attorney
appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
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No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Debenture Issuer of the proceeds
of the Debentures.
SECTION 8.5 MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, except as otherwise provided in the definition of "Outstanding"
in Article I and subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6 COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation for
all services rendered by them hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its bad faith, negligence or willful
misconduct; and
(c) to indemnify each of the Trustees or any predecessor Trustee for, and
to hold the Trustees harmless against, any loss, damage, claims, liability,
penalty or expense incurred without bad faith, negligence or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement or the resignation or removal of any Trustee. No Trustee may
claim any lien or charge on any Trust Property as a result of any amount due
pursuant to this Section 8.6.
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SECTION 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder. The Property
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8 CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. Subject to the foregoing, the Depositor and any Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage in any
financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
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SECTION 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity. Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co- trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor. Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
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remove, any such co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11. Subject to the
immediately preceding sentence, the Relevant Trustee may resign at any time with
respect to the Trust Securities by giving written notice thereof to the
Depositor. If the instrument of acceptance by the successor Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Depositor, any court of competent jurisdiction
for the appointment of a successor Relevant Trustee with respect to the Trust
Securities. Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). In no event will the Holders of
Preferred Securities have the right to vote to appoint, remove or replace the
Administrative Trustees. An Administrative Trustee may be removed by Act of the
Common Securityholder at any time. If any Trustee shall resign, be removed or
become incapable of acting as Trustee, or if a vacancy shall occur in the office
of any Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
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successor Trustee or Trustees with respect to the Trust Securities and the
Trust, and the retiring Trustee shall comply with the applicable requirements of
Section 8.11. If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property Trustee or the
Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and such successor Trustee shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, at a
time when a Debenture Event of Default shall have occurred and be continuing,
the Common Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees with respect to the Trust Securities and the Trust,
and such successor Administrative Trustee or Trustees shall comply with the
applicable requirements of Section 8.11. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so appointed by the Common
Securityholder or the Preferred Securityholders and accepted appointment in the
manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee with respect to
the Trust Securities. The Depositor shall give notice of each resignation and
each removal of the Property Trustee or the Delaware Trustee and each
appointment of a successor Property Trustee or Delaware Trustee to all
Securityholders in the manner provided in Section 10.8. Each notice shall
include the name of the successor Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee. Notwithstanding the
foregoing or any other provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (a)
the unanimous act of remaining Administrative Trustees if there are at least two
of them or (b) otherwise by the Depositor (with the successor in each case being
a Person who satisfies the eligibility requirement for Administrative Trustees
set forth in Section 8.7).
SECTION 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee such successor
Trustee so appointed shall execute, acknowledge and deliver to the Trust and to
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring Property Trustee hereunder. In case of the appointment
hereunder of a successor Relevant Trustee with respect to the Trust Securities
and the Trust, the retiring Relevant Trustee and each successor Relevant Trustee
with respect to the Trust Securities shall execute and deliver an amendment
hereto wherein each successor Relevant Trustee shall accept such appointment and
which
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(a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Trust and
(b) shall add to or change any of the provisions of this Trust Agreement as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood that nothing
herein or in such amendment shall constitute such Relevant Trustees co-trustees
of the same trust and that each such Relevant Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Trust; but, on
request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Relevant Trustee all such rights, powers and trusts referred to
in the first or second preceding paragraph, as the case may be. No successor
Relevant Trustee shall accept its appointment unless at the time of such
acceptance such successor Relevant Trustee shall be qualified and eligible under
this Article.
SECTION 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee or the Delaware Trustee (or
any Administrative Trustee that is not a natural person) 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 Relevant Trustee
shall be a party, shall be the successor of such Relevant Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR, DEBENTURE
ISSUER OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be or become
a creditor of the Depositor, the Debenture Issuer or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the Property Trustee or
the Delaware Trustee, as the case may be, shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
Act regarding the collection of claims against the Depositor, Debenture Issuer
or Trust (or any such other obligor).
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SECTION 8.14 REPORTS BY PROPERTY TRUSTEE.
(a) Within 60 days after September 15 of each year commencing with the
first September 15 following the first issuance of Preferred Securities pursuant
to this Trust Agreement, the Property Trustee shall transmit to all
Securityholders in accordance with Section 10.8, and to the Depositor, a brief
report dated as of such September 15 with respect to: (i) its eligibility under
Section 8.7 or, in lieu thereof, if to the best of its knowledge it has
continued to be eligible under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of its
obligations under this Trust Agreement during the twelve-month period (or, in
the case of the initial report, the period since the Closing Time) ending with
such September 15 or, if the Property Trustee has not complied in any material
respect with such obligations, a description of such noncompliance; and (iii)
any change in the property and funds in its possession as Property Trustee since
the date of its last report and any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange, interdealer
quotation system or other self-regulatory organization upon which the Trust
Securities are listed or traded, with the Commission and with the Depositor.
SECTION 8.15 REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Holder of all
of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees.
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The Property Trustee and the Delaware Trustee may be the same person if the
Property Trustee meets the applicable requirements.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul,
dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18 DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE IX.
DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
SECTION 9.1 DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2054 (the "Expiration Date").
SECTION 9.2 EARLY DISSOLUTION.
The first to occur of any of the following events is an "Early Termination
Event", upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Debenture Issuer or the Debenture Guarantor;
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(b) the written direction to the Property Trustee from the Depositor at any
time (which direction is optional and wholly within the discretion of the
Depositor) to dissolve the Trust and distribute a Like Amount of Debentures to
Securityholders in exchange for the Trust Securities;
(c) the redemption of all of the Trust Securities in connection with the
redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3 TERMINATION.
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following:
(a) the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.4, or upon the redemption of
all of the Trust Securities pursuant to Section 4.2, of all amounts required to
be distributed hereunder upon the final payment of the Trust Securities;
(b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
SECTION 9.4 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(e).
(b) Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall: (i) state the Liquidation Date; (ii) state that from and
after the Liquidation Date, the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Debentures; and (iii) provide such
information with respect to the mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section 9.4(e) applies, receive a
Liquidation Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(c) Except where Section 9.2(c) or 9.4(e) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a
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record date for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.
(d) Except where Section 9.2(c) or 9.4(e) applies, on and after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to the Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall cause the Debenture Issuer to use its reasonable efforts to
have the Debentures listed or traded on the such stock exchange, interdealer
quotation system and/or other self-regulatory organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities Certificates not
so surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(e) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be wound-up and terminated by
the Property Trustee in such manner as the Property Trustee determines. In such
event, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding up, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
SECTION 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST.
The Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other entity, except
pursuant to this Section 9.5 or Section 9.4. The Trust may, at the
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request of the Depositor, with the consent of only the Administrative Trustees
and without the consent of the Holders of the Preferred Securities, merge with
or into, convert into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities or (b) substitutes for the
Preferred Securities other securities having substantially the same terms as the
Preferred Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Depositor has received an Opinion of Counsel rendered by independent
counsel experienced in such matters to the effect that (a) such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect, and (b) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an investment company
under the Investment Company Act and (viii) the Depositor (or any permitted
successor or assignee) owns all of the common securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, convert into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, convert into, or replace it if such consolidation, amalgamation,
merger, conversion, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be classified for
United States Federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an investment company under the Investment Company;
provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Securityholder.
Any such amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from status
of an investment company under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date. Notwithstanding
any other provision herein, without the unanimous consent of the
Securityholders, this paragraph (c) of this Section 10.2 may not be amended.
49
<PAGE>
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the Investment Company Act or fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary, this
Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor, the Property Trustee or the Delaware Trustee
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee, as the case may be.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
SECTION 10.3 SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 10.4 GOVERNING LAW.
This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware.
SECTION 10.5 PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
SECTION 10.6 SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with a consolidation,
merger or sale involving the Depositor that is permitted
50
<PAGE>
under Article Eight of the Indenture and pursuant to which the assignee agrees
in writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7 HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8 REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to ACE INA Holdings
Inc., c/o ACE USA Inc., Six Concourse Parkway, Suite 2500, Atlanta, Georgia
30328, Attention: ___________, facsimile no.: _______________. Any notice to
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
given in writing addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee, to The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: _______________; (b) with respect to the Delaware Trustee, to Bank
One Delaware, Inc., Three Christina Center, 201 North Walnut Street, Wilmington,
Delaware 19801, Attention: ______________________ ; and (c) with respect to the
Administrative Trustees, to them at [c/o ACE USA Inc., Six Concourse Parkway,
Suite 2500, Atlanta, Georgia 30328], marked "Attention Administrative Trustees
of ACE Capital Trust I." Such notice, demand or other communication to or upon
the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
SECTION 10.9 AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been dissolved in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes
51
<PAGE>
action in violation of this Section 10.9, the Property Trustee agrees, for the
benefit of Securityholders, that at the expense of the Depositor, it shall file
an answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Trustee or the Trust may assert. The
provisions of this Section 10.9 shall survive the termination of this Trust
Agreement.
SECTION 10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
52
<PAGE>
SECTION 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
ACE INA HOLDINGS INC., as Depositor
By:
-------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as Property
Trustee
By:
-------------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., as Delaware Trustee
By:
-------------------------------------------
Name:
Title:
-------------------------------------------
Robert A. Blee,
as Administrative Trustee.
-------------------------------------------
Christopher Z. Marshall,
as Administrative Trustee
53
<PAGE>
EXHIBIT A-1
CERTIFICATE OF TRUST
OF
ACE CAPITAL TRUST I
This Certificate of Trust of ACE Capital Trust I (the "Trust"), dated as of
May 19, 1999, is being duly executed and filed by the undersigned, as trustees,
to form a business trust under the Delaware Business Trust Act (12 Del.C. ss.
3801. et seq.)
1. Name. The name of the business trust formed hereby is ACE Capital Trust
I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware is Bank One
Delaware, Inc., Three Christina Centre, 201 North Walnut Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as trustee
of the trust
By:
------------------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee of the
Trust
By:
------------------------------------------------
Name:
Title:
---------------------------------------------------
ROBERT A. BLEE, not in his individual capacity
but solely as trustee of the Trust
A-1-1
<PAGE>
EXHIBIT A-2
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
FIRST AMENDMENT TO THE
TRUST AGREEMENT OF
ACE CAPITAL TRUST I
This Assignment and Assumption Agreement and First Amendment to the Trust
Agreement of ACE Capital Trust I (the "Trust"), dated as of __________ ___1999
(this "Assignment and Amendment Agreement"), is made and entered into by and
among ACE Limited, a Cayman Islands company limited by shares, as the original
depositor (the "Original Depositor"), ACE INA Holdings Inc., a Delaware
corporation, as the substitute depositor (the "Substitute Depositor"), The First
National Bank of Chicago, a national banking association, as property trustee
(the "Property Trustee"), Bank One Delaware, Inc., a Delaware corporation, as
trustee (the "Delaware Trustee"), and Robert A. Blee, an individual, as trustee
(the "Administrative Trustee") (the Property Trustee, the Delaware Trustee and
the Administrative Trustee being hereinafter collectively referred to as the
"Trustees").
WITNESSETH
WHEREAS, the Trust is a Delaware business trust that was created under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq.
pursuant to (i) the Trust Agreement of the Trust, dated as of May 19, 1999 (the
"Trust Agreement"), and (ii) the Certificate of the Trust of the Trust, dated as
of May 19, 1999, as filed with the office of the Secretary of State of the State
of Delaware on May 19, 1999;
WHEREAS, the Original Depositor, as the depositor under the Trust
Agreement, desires to assign, transfer and convey all of its right, title and
interest in the Trust (the "Depositor's Interest") to the Substitute Depositor,
and the Original Depositor desires to cease to be the depositor of the Trust;
WHEREAS, the Substitute Depositor desires to acquire the Depositor's
Interest currently held by the Original Depositor, and the Substitute Depositor
desires to become the depositor of the Trust; and
WHEREAS, the undersigned, being the Original Depositor, the Substitute
Depositor and all the Trustees of the Trust, to accomplish the foregoing, desire
to amend the Trust Agreement in the manner set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
A-2-1
<PAGE>
1. Assignment. Notwithstanding any provision in the Trust Agreement to the
contrary, for value received, the receipt and sufficiency of which are hereby
acknowledged, upon the execution of this Assignment and Amendment Agreement by
the parties hereto, the Original Depositor does hereby assign, transfer and
convey the Depositor's Interest to the Substitute Depositor.
2. Substitution. Notwithstanding any provision in the Trust Agreement to
the contrary, contemporaneously with the assignment described in Section 1 of
this Assignment and Amendment Agreement, the Substitute Depositor shall become
the depositor of the Trust and shall have all rights, powers and obligations of
the Depositor (as such term is used in the Trust Agreement) under the Trust
Agreement.
3. Cessation. Notwithstanding any provision in the Trust Agreement to the
contrary, immediately following the Substitute Depositor becoming the depositor
of the Trust, the Original Depositor shall cease to be the depositor of the
Trust, and shall thereupon cease to have any right, obligation or power as the
depositor of the Trust.
4. Continuation of the Trust. The parties hereto agree that (i) the
assignment of the Depositor's Interest, the Substitute Depositor becoming the
depositor of the Trust and the Original Depositor's ceasing to be the depositor
of the Trust shall not dissolve the Trust and (ii) the business of the Trust
shall continue without dissolution.
5. Successors and Assigns. This Assignment and Amendment Agreement shall be
binding upon, and shall enure to the benefit of, the parties hereto and their
respective successors and assigns.
6. Full Force and Effect. Except to the extent modified hereby, the Trust
Agreement shall remain in full force and effect.
7. Counterparts. This Assignment and Amendment Agreement may be executed in
counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all such parties are not signatories to
the original or same counterpart.
8. Governing Law. This Assignment and Amendment Agreement shall be
interpreted in accordance with the laws of the State of Delaware (without regard
to conflict of laws principles), all rights and remedies being governed by such
laws.
9. Effectiveness of Amendment. This Assignment and Amendment Agreement
shall become a legally effective and binding instrument as of the date hereof.
[SIGNATURE PAGES FOLLOW]
A-2-2
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
Amendment Agreement as of the day and year first above written.
ACE LIMITED,
as Original Depositor
By:
-----------------------------------------
Name:
Title:
ACE INA HOLDINGS INC.
as Substitute Depositor
By:
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, not in its individual capacity but
solely as trustee of the Trust
By:
-----------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee of
the Trust
By:
-----------------------------------------
Name:
Title:
-------------------------------------------
ROBERT A. BLEE, not in his individual
capacity but solely as trustee of the Trust
A-2-3
<PAGE>
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: John C. Drennan
General Counsel's Officer
Re: ACE Capital Trust I _____% Trust Originated Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
issuance and deposit with The Depository Trust Company ("DTC") of the ACE
Capital Trust I ____% Trust Originated Preferred Securities (the "Preferred
Securities"), of ACE Capital Trust I, a Delaware business trust (the "Issuer"),
governed by an Amended and Restated Trust Agreement among ACE INA Holdings Inc.
("ACE INA") and The First National Bank of Chicago, as Property Trustee, Bank
One Delaware, Inc., as Delaware Trustee, and the Administrative Trustees named
therein. The payment of distributions on the Preferred Securities, and payments
due upon liquidation of Issuer or redemption of the Preferred Securities, to the
extent the Issuer has funds available for the payment thereof are guaranteed by
ACE Limited, a Cayman Islands company and the parent of ACE INA ("ACE"), to the
extent set forth in a Guarantee Agreement dated ______________, ____ by ACE with
respect to the Preferred Securities. ACE INA, ACE and the Issuer propose to sell
the Preferred Securities to certain Underwriters (the "Underwriters") pursuant
to an Underwriting Agreement dated __________, 1999 by and among the
Underwriters, the Issuer, ACE INA and ACE dated _____, ____, and the
Underwriters wish to take delivery of the Preferred Securities through DTC. The
First National Bank of Chicago is acting as transfer agent and registrar with
respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for deposit at
DTC, and to act in accordance with DTC's rules with respect to the Preferred
Securities, the Issuer, the Transfer Agent and Registrar and DTC agree among
each other as follows:
(1) Prior to the closing of the sale of the Preferred Securities to the
Underwrites, which is expected to occur on or about _________________, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of Preferred
Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer,
B-1
<PAGE>
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
(2) The Amended and Restated Trust Agreement of the Issuer provides for the
voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
(3) In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
(4) In the event of distribution on, or an offering or issuance of rights
with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
B-2
<PAGE>
The Issuer or the Transfer Agent and Registrar shall confirm DTC's receipt
of such telecopy by telephoning the Dividend Department at (212) 709-1270.
(5) In the event of a redemption by the Issuer of the Preferred Securities,
notice specifying the terms of the redemption and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC
not less than 30 calendar days prior to such event by a secure means in the
manner set forth in paragraph 4. Such redemption notice shall be sent to DTC's
Call Notification Department at (516) 227-4164 or (516) 227-4190, and receipt of
such notice shall be confirmed by telephoning (516) 227-4070. Notice by mail or
by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719.
(6) In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
(7) All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is ACE
Capital Trust I _____% Trust Originated Preferred Securities.
(8) Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
B-3
<PAGE>
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
(9) DTC may be prior written notice direct the Issuer and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
(10) In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
(11) DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer of the Transfer
Agent and Registrar.
(12) In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
B-4
<PAGE>
(13) This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of ACE Capital Trust I.
Very truly yours,
ACE CAPITAL TRUST I
(As Issuer)
[Name of Trustee]
By:
-----------------------------
Administrative Trustee
By:
-----------------------------
Name:
Title:
---------------------------------
(As Transfer Agent and Registrar)
By:
-----------------------------
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
---------------------------
Authorized Officer
B-5
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number Number of Common Securities
C-__ ______
Certificate Evidencing Common Securities
of
ACE CAPITAL TRUST I
_____% Common Securities
(liquidation amount $_____ per Common Security)
ACE Capital Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that ACE INA Holdings Inc.
(the "Holder") is the registered owner of _________________________ (________)
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the _____% Common Securities (liquidation
amount $______ per Common Security) (the "Common Securities"). In accordance
with Section 5.10 of the Trust Agreement (as defined below) the Common
Securities are not transferable and any attempted transfer hereof shall be void.
The designations, and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of __________, 1999, as the same may be amended from time
to time (the "Trust Agreement"), including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
C-1
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____ day of __________, 1999.
ACE CAPITAL TRUST I
By:
-----------------------------
Name:
Administrative Trustee
C-2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________, 1999, between ACE Limited, a Cayman
Islands company ("ACE"), and ACE Capital Trust I, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from ACE INA Holdings Inc., a Delaware
corporation and a wholly-owned subsidiary of ACE ("ACE INA"), and to issue and
sell _____% Trust Originated Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust dated as of
__________, 1999, as the same may be amended from time to time (the "Trust
Agreement');
WHEREAS, ACE INA will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
WHEREAS, ACE will guarantee the obligations of ACE INA under the Debentures
and has agreed to guarantee certain expenses and liabilities of the Trust as
provided herein;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase ACE hereby agrees shall benefit ACE and
which purchase ACE acknowledges will be made in reliance upon the execution and
delivery of this Agreement, ACE and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY ACE .
Subject to the terms and conditions hereof, ACE hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date one which there are no
Beneficiaries remaining ; provided, however, that this Agreement shall
D-1
<PAGE>
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof between ACE, in its capacity as
guarantor with respect to the Preferred Securities, and The First National Bank
of Chicago, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.3 WAIVER OF NOTICE.
ACE hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and ACE hereby waives presentment,
demand for payment, protest, notices of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of ACE under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, ACE with respect to the happening of any of the
foregoing.
SECTION 1.5 ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against ACE , and ACE
waives any right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against ACE .
SECTION 1.6. SUBROGATION.
ACE shall be subrogated to all (if any) rights of the Trust in respect of
any amounts paid to the Beneficiaries by ACE under this Agreement; provided,
however, that ACE shall not (except to
D-2
<PAGE>
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement , in all cases as a result of payment under
this Agreement, if, at the time of any such payment, any amounts are due and
unpaid under this Agreement.
ARTICLE II.
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of ACE and shall
inure to the benefit of the Beneficiaries.
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred Securities are
outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Preferred Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
ACE Capital Trust I
c/o ACE USA Inc.
Six Concourse Parkway
Suite 2500
Atlanta, Georgia 30328
Facsimile:
Attention:
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton 08
Bermuda
Facsimile:
Attention:
SECTION 2.4 GOVERNING LAW.
D-3
<PAGE>
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
THIS AGREEMENT is executed as of the day and year first above written.
ACE LIMITED
By:
-----------------------------
Name:
Title:
ACE CAPITAL TRUST I
By: -----------------------------
Name:
Title:
D-4
<PAGE>
EXHIBIT E
This Preferred Security is a Global Certificate within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to ACE
Capital Trust I or its agent for registration of transfer, exchange or payment,
and any Preferred Security issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
P-___ __________
Certificate Evidencing Preferred Securities
Of
ACE CAPITAL TRUST I
_____% Trust Originated Preferred Securities
(liquidation amount $__________ per Preferred Security)
ACE Capital Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of __________ (__________) preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the ACE Capital Trust I _____% Trust
Originated Preferred Securities (Liquidation Amount $_____ per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of the Amended
E-1
<PAGE>
and Restated Trust Agreement of the Trust, dated as of __________, 1999, as the
same may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of Preferred Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
ACE Limited, a Cayman Islands company, and The First National Bank of Chicago,
as guarantee trustee, dated as of __________, 1999 (the "Guarantee"), to the
extent provided therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee to the Holder without charge upon written recruits to the
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____th day of __________, 1999.
ACE CAPITAL TRUST I
By:
-----------------------------
Name:
Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
E-2
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: __________
Signature: ___________________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
SIGNATURE(S) GUARANTEED:
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATION AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
E-3
<PAGE>
Exhibit 4.16
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
ACE INA HOLDINGS INC., AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE
BANK ONE DELAWARE, INC.,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF _________________, 1999
ACE CAPITAL TRUST II
================================================================================
<PAGE>
Table of Contents
Page
----
ARTICLE I. DEFINED TERMS
Section 1.1 DEFINITIONS........................................................2
ARTICLE II. ESTABLISHMENT OF THE TRUST
Section 2.1 NAME. ............................................................10
Section 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS....................................................10
Section 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES........................................10
Section 2.4 ISSUANCE OF THE PREFERRED SECURITIES..............................10
Section 2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION
AND PURCHASE OF DEBENTURES.....................................11
Section 2.6 DECLARATION OF TRUST..............................................11
Section 2.7 AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS...................................................12
Section 2.8 ASSETS OF TRUST...................................................15
Section 2.9 TITLE TO TRUST PROPERTY. .........................................15
ARTICLE III. PAYMENT ACCOUNT
Section 3.1 PAYMENT ACCOUNT. .................................................16
ARTICLE IV. CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1 DISTRIBUTIONS.....................................................16
Section 4.2 REDEMPTION. ......................................................18
Section 4.3 SUBORDINATION OF COMMON SECURITIES. ..............................20
Section 4.4 PAYMENT PROCEDURES. ..............................................20
Section 4.5 TAX RETURNS AND REPORTS. .........................................20
Section 4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST. ....................21
Section 4.7 PAYMENTS UNDER INDENTURE. ........................................21
ARTICLE V. TRUST SECURITIES CERTIFICATES
Section 5.1 INITIAL OWNERSHIP. ...............................................21
Section 5.2 THE TRUST SECURITIES CERTIFICATES.................................21
Section 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES...................................................22
Section 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES. ............................22
Section 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES........................................23
Section 5.6 PERSONS DEEMED SECURITYHOLDERS. ..................................23
Section 5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND
ADDRESSES. ....................................................23
Section 5.8 MAINTENANCE OF OFFICE OR AGENCY. .................................24
Section 5.9 APPOINTMENT OF PAYING AGENT. .....................................24
Section 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. ....................25
Section 5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES;
COMMON SECURITIES CERTIFICATE. ................................25
i
<PAGE>
Section 5.12 NOTICES TO CLEARING AGENCY. .....................................26
Section 5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES.....................26
Section 5.14 RIGHTS OF SECURITYHOLDERS........................................27
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1 LIMITATIONS ON VOTING RIGHTS. ....................................29
Section 6.2 NOTICE OF MEETINGS. ..............................................30
Section 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.............................30
Section 6.4 VOTING RIGHTS.....................................................31
Section 6.5 PROXIES, ETC......................................................31
Section 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT. ........................31
Section 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES. .......................31
Section 6.8 ACTS OF SECURITYHOLDERS. .........................................32
Section 6.9 INSPECTION OF RECORDS. ...........................................33
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
Section 7.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE. .............................33
Section 7.2 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR ......................34
ARTICLE VIII. THE TRUSTEES
Section 8.1 CERTAIN DUTIES AND RESPONSIBILITIES. .............................34
Section 8.2 CERTAIN NOTICES. .................................................36
Section 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE................................36
Section 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. ...................................................38
Section 8.5 MAY HOLD SECURITIES...............................................38
Section 8.6 COMPENSATION; INDEMNITY; FEES. ...................................38
Section 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY
OF TRUSTEES....................................................39
Section 8.8 CONFLICTING INTERESTS. ...........................................39
Section 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE. ................................40
Section 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. ....................................................41
Section 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. .........................42
Section 8.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. .......................................43
Section 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR, DEBENTURE ISSUER OR TRUST...........................43
Section 8.14 REPORTS BY PROPERTY TRUSTEE. ....................................44
Section 8.15 REPORTS TO THE PROPERTY TRUSTEE. ................................44
Section 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. ....................................................44
Section 8.17 NUMBER OF TRUSTEES. .............................................44
Section 8.18 DELEGATION OF POWER. ............................................45
ARTICLE IX. DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
Section 9.1 DISSOLUTION UPON EXPIRATION DATE. ................................45
Section 9.2 EARLY DISSOLUTION. ...............................................45
Section 9.3 TERMINATION. .....................................................46
ii
<PAGE>
Section 9.4 LIQUIDATION. .....................................................46
Section 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST. ....................................47
ARTICLE X. MISCELLANEOUS PROVISIONS
Section 10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS. ........................49
Section 10.2 AMENDMENT. ......................................................49
Section 10.3 SEPARABILITY. ...................................................50
Section 10.4 GOVERNING LAW. ..................................................50
Section 10.5 PAYMENTS DUE ON NON-BUSINESS DAY. ...............................50
Section 10.6 SUCCESSORS. .....................................................50
Section 10.7 HEADINGS. .......................................................51
Section 10.8 REPORTS, NOTICES AND DEMANDS. ...................................51
Section 10.9 AGREEMENT NOT TO PETITION. ......................................51
Section 10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT. ................................................52
Section 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE. ......................................53
Exhibit A-1 CERTIFICATE OF TRUST OF ACE CAPITAL TRUST II
Exhibit A-2 ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST
AMENDMENT
Exhibit B LETTER TO DTC PERTAINING TO THE TRUST ORIGINATED
PREFERRED SECURITIES
Exhibit C CERTIFICATE EVIDENCING COMMON SECURITIES OF ACE CAPITAL
TRUST II
Exhibit D AGREEMENT AS TO EXPENSES AND LIABILITIES
Exhibit E CERTIFICATE EVIDENCING PREFERRED SECURITIES OF ACE CAPITAL
TRUST II
iii
<PAGE>
ACE CAPITAL TRUST II
CERTAIN SECTIONS OF THIS TRUST AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE TRUST
ACT SECTION AGREEMENT SECTION
ss.310(a)(1).................................................................8.7
(a) (2)......................................................................8.7
(a) (3)......................................................................8.9
(a) (4)...............................................................2.7(a)(ii)
(b)..........................................................................8.8
ss. 311(a)..................................................................8.13
(b).........................................................................8.13
ss. 312(a)...................................................................5.7
(b)..........................................................................5.7
(c)..........................................................................5.7
ss. 313(a)...............................................................8.14(a)
(a)(4)...................................................................8.14(b)
(b)......................................................................8.14(b)
(c).........................................................................10.8
(d)......................................................................8.14(c)
ss.314(a)...................................................................8.15
(b)...............................................................Not Applicable
(c)(1)......................................................................8.16
(c)(2)......................................................................8.16
(c) (3)...........................................................Not Applicable
(d)...............................................................Not Applicable
(e)....................................................................1.1, 8.16
ss. 315(a)........................................................8.1(a), 8.3(a)
(b)....................................................................8.2, 10.8
(c).......................................................................8.1(a)
(d).....................................................................8.1, 8.3
(e)...............................................................Not Applicable
ss.316(a).........................................................Not Applicable
(a)(1)(A).........................................................Not Applicable
(a)(1)(B).........................................................Not Applicable
(a) (2)...........................................................Not Applicable
(b)...............................................................Not Applicable
(c)..........................................................................6.7
ss.317(a) (1).....................................................Not Applicable
(a) (2)...........................................................Not Applicable
(b)..........................................................................5.9
ss.318(a)..................................................................10.10
- ----------
Note: This reconciliation and tie sheet shall not, for any purpose be deemed to
be a part of the Trust Agreement.
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________, 1999, among
(i) ACE INA HOLDINGS INC., a corporation duly organized and existing under the
laws of the State of Delaware (including any successors or assigns, the
"Depositor"), (ii) THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association duly organized and existing under the laws of the United States, as
property trustee (the "Property Trustee" and, in its individual capacity and not
in its capacity as Property Trustee, the "Bank"), (iii) BANK ONE DELAWARE, INC.,
a Delaware corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee,"), (iv) Robert A. Blee, an individual, and Christopher Z. Marshall, an
individual, each of whose address is c/o ACE USA, Inc., Six Concourse Parkway,
Suite 2500, Atlanta, Georgia 30328 (each an "Administrative Trustee" and
collectively, the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees are referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, ACE Limited, as original sponsor of the Trust (the "Original
Depositor") and certain of the Trustees (the "Original Trustees") have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of May 19, 1999 (the "Initial Trust Agreement"), and by the
execution by the Original Trustees and filing with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on May 19, 1999 (the
"Certificate of Trust"), attached as Exhibit A-1;
WHEREAS, the Original Depositor has assigned to the Depositor, and the
Depositor has assumed, all of the Original Depositor's right, title and interest
in and to, and its obligations as Trust sponsor under, the Initial Trust
Agreement, pursuant to the Assignment and Assumption Agreement and First
Amendment to the First Agreement dated as of _________, 1999 (the "Amendment"),
between the original Depositor, the Depositor and the Original Trustees (the
Initial Trust Agreement is amended by the Amendment being hereinafter referred
to as the "Original Trust Agreement"), attached as Exhibit A-2 and
WHEREAS, the Depositor (as successor Trust sponsor) and the Trustees desire
to amend and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities by the Trust pursuant to the Underwriting Agreement, (iii)
the acquisition by the Trust from the Debenture Issuer (as hereinafter defined)
of all of the right, title and interest in the Debentures and (iv) the
appointment of additional Administrative Trustees;
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, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
<PAGE>
ARTICLE I
DEFINED TERMS
Section 1.1 DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amounts" means, with respect to Trust Securities of a given
Liquidation Amount, for a given period, the amount of any Additional Interest
and any Additional Amounts (as defined in the Indenture) paid by the Debenture
Issuer or the Debenture Guarantor on a Like Amount of Debentures for such
period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Sums" has the meaning specified in Section 10.9 of the
Indenture.
"Administrative Trustee" means each of ________________________, and
_____________________, solely in such Person's capacity as Administrative
Trustee of the Trust and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
2
<PAGE>
"Bankruptcy Event" means, with respect to any Person: (a) the entry of a
decree or order by a court having jurisdiction in the premises judging such
Person a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of such
Person or of any substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or (b) the
institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or the consent by
it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or similar official) of such Person
or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Law" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution, certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, delivered to the appropriate Trustee or Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial interest
in the Preferred Securities Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and DTC, as the initial Clearing Agency, dated as of the Closing Date,
relating to the Trust Securities Certificates, substantially in the form
attached as Exhibit B, as the same may be amended and supplemented from time to
time.
"Certificate of Trust" has the meaning specified in the recitals to this
Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. DTC
will be the initial Clearing Agency.
3
<PAGE>
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Time" has the meaning specified in the Underwriting Agreement,
which date is also the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $____ and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office " means the principal office of the Property
Trustee located in Chicago, Illinois.
"Date of Delivery" has the meaning specified in the Underwriting Agreement.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Guarantor" means ACE Limited, a Cayman Islands company, in its
capacity as guarantor under the Indenture, and its successors.
"Debenture Issuer" means ACE INA Holdings Inc., a Delaware corporation, in
its capacity as the issuer of the Debentures under the Indenture, and its
successors.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, in its capacity as trustee under the Indenture, or any successor trustee
appointed as therein provided.
"Debentures" means the aggregate principal amount of the Debenture Issuer's
__% Junior Subordinated Deferrable Interest Debentures due _________, issued
pursuant to the Indenture.
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"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificates as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the first paragraph of this Trust Agreement solely in its capacity
as Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event 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): (a) the occurrence of a Debenture Event of
Default; or (b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or (c) default by the Property Trustee in the payment
of any Redemption Price of any Trust Security when it becomes due and payable;
or (d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or (e) the
occurrence of a Bankruptcy Event with respect to the Property Trustee and the
failure by the Depositor to appoint a successor Property Trustee within 60 days
thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
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"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Preferred Securities Guarantor and The First National Bank of Chicago, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Subordinated Indenture, dated as of ____________,
1999, among the Debenture Issuer, the Debenture Guarantor and the Debenture
Trustee, as trustee, as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $____ per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a dissolution and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman, the President, any Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Depositor, that complies with the requirements of Section 314(e) of the
Trust Indenture Act and is delivered to the appropriate Trustee or Trustees.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor, as the case may be, or
other counsel who shall be reasonably acceptable to the Property Trustee, that,
if required by the Trust Indenture Act, complies with the requirements of
Section 314(e) of the Trust Indenture Act.
"Original Depositor" has the meaning specified in the recitals to this
Trust Agreement.
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"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Original Trustees" has the meaning specified in the recitals to this Trust
Agreement.
"Outstanding," when used with respect to Preferred Securities, means, as of
the date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13, unless there
shall have been presented to the Property Trustee proof satisfactory
to it that such Preferred Security is held by a bona fide purchaser in
whose hand such Preferred Security is a valid obligation of the Trust;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or are present at a meeting of Securityholders for quorum purposes, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee, shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
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"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Paying Agent in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $____ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit E.
"Preferred Securities Guarantor" means ACE Limited, a Cayman Islands
Company, in its capacity as guarantor under the Guarantee, and its successors.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, and any Additional Amounts paid by the Debenture Issuer or the Debenture
Guarantor upon the concurrent redemption of a Like Amount of Debentures,
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
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"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Securities is registered in the Securities Register; any such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that in determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, then for purposes of any such determination, so long as
Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Time of Delivery" means, collectively, the Closing Time and each Date of
Delivery.
"Trust" means the Delaware business trust created by the Original Trust
Agreement and the Certificate of Trust and continued hereby and identified on
the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
__________, 1999, among the Trust, the Depositor, ACE Limited and the
Underwriters named therein.
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ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1 NAME.
The Trust continued hereby shall be known as "ACE Capital Trust II," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
Section 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is Three
Christina Centre, 201 North Walnut Street, Wilmington, Delaware 19801, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Depositor. The principal executive office of the Trust is
c/o ACE USA Inc., Six Concourse Parkway, Suite 2500, Atlanta, Georgia 30328.
Section 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES.
The Trustees acknowledge receipt in trust from the Original Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.4 ISSUANCE OF THE PREFERRED SECURITIES.
The Depositor, on behalf of the Trust and as successor Trust sponsor under
the Original Trust Agreement, has executed and delivered the Underwriting
Agreement. At the Closing Time, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of ____________ Preferred Securities having an
aggregate Liquidation Amount of $___________, against receipt of such aggregate
purchase price of such Preferred Securities of $________, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. On each
Date of Delivery, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named in
the Underwriting Agreement Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of up
to __________ Preferred Securities (less such number of Preferred Securities
evidenced by Preferred Securities Certificates executed and delivered on any
prior Dates
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of Delivery) having an aggregate Liquidation Amount of up to $__________ (less
the aggregate Liquidation Amount of any Preferred Securities evidenced by
Preferred Securities Certificates executed and delivered on any prior Dates of
Delivery), against receipt of such aggregate purchase price of such Preferred
Securities of $___________ (less the aggregate Liquidation Amount of any
Preferred Securities evidenced by Preferred Securities Certificates executed and
delivered on any prior Dates of Delivery), which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
Section 2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF
DEBENTURES.
(a) At the Closing Time, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of _________ Common Securities having an aggregate Liquidation
Amount of $_________, against payment by the Depositor of such amount, which
amount such Administrative Trustee shall promptly deliver to the Property
Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Trust, shall subscribe to and purchase from the Debenture Issuer Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Debenture Issuer the sum of $__________. On each Date of Delivery, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of up to
__________ Common Securities (less such number of Common Securities evidenced by
Common Securities Certificates executed and delivered on any prior Dates of
Delivery) having an aggregate Liquidation Amount of up to $__________ (less the
aggregate Liquidation Amount of any Common Securities evidenced by Common
Securities Certificates executed and delivered on any prior Dates of Delivery),
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
(b) At the Closing Time and on each Date of Delivery, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Debenture Issuer Debentures, registered in the name of the Trust and having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities and Common Securities issued and sold on such date, and, in
satisfaction of the purchase price for such Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Debenture Issuer the amount received
on such date from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4.
Section 2.6 DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures,
and (b) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust
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Property upon and subject to the conditions set forth herein for the benefit of
the Securityholders. The Administrative Trustees shall have all rights, powers
and duties set forth herein and in accordance with applicable law with respect
to accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Trustees set forth herein except as required
by the Delaware Business Trust Act. The Delaware Trustee shall be one of the
Trustees of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Delaware Business Trust Act.
Section 2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section and Article VIII, and in accordance with the
following provisions (i) and (ii), the Administrative Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and to perform all
acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each of the Administrative Trustees, acting
singly or together, shall have the power and authority to act on behalf of
the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) to assist in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;
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(F) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(G) the establishment of a record date for any of the purposes
contemplated by Section 6.7 hereof;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any or
all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
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(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder); and
(J) engaging in such ministerial activities as shall be
necessary, appropriate, convenient or incidental to effect the
repayment of the Preferred Securities and the Common Securities to the
extent the Debentures mature or are redeemed.
Except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not cause the Trust to (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take any action that
would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to
the Trustees of actions they must take on behalf of the Trust, and the
preparation
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for execution and filing of any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on behalf
of the Trust of an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) the taking of any other actions deemed by the Depositor to be
necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act or
classified as an association taxable as a corporation for United States Federal
income tax purposes and so that the Debentures will be treated as indebtedness
of the Debenture Issuer for United States Federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in their discretion to be necessary or desirable for such purposes,
as long as such action does not adversely affect in any material respect the
interests of the Holders of the Preferred Securities.
Section 2.8 ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
Section 2.9 TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
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ARTICLE III.
PAYMENT ACCOUNT
Section 3.1 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1 DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the payment
of Distributions. Distributions shall accrue from __________, ____, and shall be
payable quarterly in arrears on _________, _______, ______ and ________ of each
year, commencing on __________, _____, except as otherwise described below. The
Debenture Issuer has the right under the Indenture, at any time and from time to
time, to defer payments of interest for such period or periods as may be
specified with respect to the Debentures (each, an "Extension Period"), on the
terms and conditions specified in the Indenture. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate at the rate set forth in paragraph (b)
of this Section 4.1, together with additional distributions thereon (to the
extent permitted by applicable law) at the rate at which Additional Interest is
then accruing on the Debentures, compounded quarterly during any such Extension
Period. If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall be
made on the next succeeding day that is a Business Day (and without any
additional distributions or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date such payment was
originally payable (each date on which distributions are payable in accordance
with this Section 4.1(a), a "Distribution Date").
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(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable at a rate of __% per annum of the Liquidation Amount
of the Trust Securities. The term "Distributions" as used herein includes such
cash distributions and any accumulated or additional distributions that are
payable hereunder unless otherwise stated. The amount of Distributions payable
for any full or partial period shall be computed on the basis of a 360-day year
of twelve 30-day months. The amount of Distributions payable for any period
shall include Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register at the close of business on the relevant record date, which, as long as
the Preferred Securities remain in book-entry only form, shall be the date one
Business Day immediately preceding such Distribution Date. The relevant record
dates for the Common Securities shall be the same record dates as for the
Preferred Securities. If the Preferred Securities shall not continue to remain
in book-entry only form or are not in book-entry only form at issuance, the
relevant record dates for the Preferred Securities shall be the date 15 days
prior to the relevant Distribution Date, which Distribution Dates shall
correspond to the interest payment dates on the Debentures. Distributions
payable on any Trust Securities that are not punctually paid on any Distribution
Date, as a result of the Debenture Issuer (or the Debenture Guarantor on its
behalf) having failed to make an interest payment under the Debentures, will
cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Trust Securities are
registered on the special record date or other specified date for determining
Debentureholders entitled to such defaulted interest established in accordance
with the Indenture.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed pro rata among the Holders of the Trust Securities. A reference
herein to any payment, distribution or treatment as being "pro rata" shall mean
pro rata to each Holder of Trust Securities according to the aggregate
Liquidation Amount of the Trust Securities held by the relevant Holder in
relation to the aggregate Liquidation Amount of all Trust Securities outstanding
unless, in relation to a payment, a Debenture Event of Default has occurred and
is continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to the
aggregate Liquidation Amount of Preferred Securities held by the relevant Holder
relative to the aggregate Liquidation Amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate Liquidation Amount of Common Securities held by the relevant
Holder relative to the aggregate Liquidation Amount of all Common Securities
outstanding.
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Section 4.2 REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at a price per Trust Security equal to the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption (which notice
shall be irrevocable) in respect of any Preferred Securities, then, by 12:00
noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the relevant Persons' accounts at such Clearing Agency on
the applicable Redemption Date. If the Preferred Securities are no longer in
book-entry-only form, and in the case of the Common Securities, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Trust Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities
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on the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit, all
rights of Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption Price
and any Distributions payable on or prior to the Redemption Date, but without
interest, and such Securities will cease to be outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Preferred Securities Guarantor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made
to the recordholders thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be one Business Day
prior to the relevant Redemption Date; provided, however, that in the event that
the Preferred Securities do not remain in book-entry-only form, the relevant
record date shall be the date fifteen days prior to the relevant Redemption
Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $____ or an integral multiple of $____ in excess thereof)
of the Liquidation Amount of Preferred Securities of a denomination larger than
$____. The Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
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Section 4.3 SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made, subject to Section 4.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any Event
of Default resulting from a Debenture Event of Default shall have occurred and
be continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
Section 4.4 PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
Section 4.5 TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall
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(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service Form required to be filed in respect of the Trust in
each taxable year of the Trust and
(b) prepare and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority.
Section 4.7 PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (and any Owner
with respect thereto) has directly received pursuant to Section 5.8 of the
Indenture.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
Section 5.1 INITIAL OWNERSHIP.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
Section 5.2 THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of $____ Liquidation Amount and integral multiples of $____ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $____ Liquidation Amount and integral multiples of $____ in
excess thereof. The Trust Securities Certificates shall be executed on behalf of
the Trust by manual signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject
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to the obligations of a Securityholder hereunder, upon due registration of such
Trust Securities Certificate in such transferee's name pursuant to Sections 5.4,
5.11 and 5.13.
Section 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
At each Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its Chairman of the Board, a
Vice Chairman, its President, a Vice President or its Treasurer and attested by
its Secretary or one of its Assistant Secretaries, without further corporate
action by the Depositor, in authorized denominations.
Section 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES
CERTIFICATES.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register"). The registrar
designated by the Depositor (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Preferred Securities Certificates and Common Securities Certificates (subject
to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. The Bank shall be the initial Securities Registrar. Upon
surrender for registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to Section 5.8, the Administrative
Trustees or any one of them shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities after such Preferred Securities have been called for
redemption. At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 5.8. Every Preferred Securities
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory to
an Administrative Trustee and the Securities Registrar duly executed by the
Holder or his attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by an Administrative Trustee in
accordance with customary practice. Registration of transfers or exchanges of
Preferred Securities Certificates shall be effected without service charge by or
on behalf of the Trust, but the Securities Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such transfer or exchange.
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Section 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.
Section 5.6 PERSONS DEEMED SECURITYHOLDERS.
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Administrative Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving distributions and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees shall furnish or cause to be furnished (x) to
the Depositor, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request therefor from
the Property Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in such form as
the Depositor or the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the previous
six months of not less than 25% of the Outstanding aggregate Liquidation Amount
apply in writing to any Administrative Trustee, and such application states that
the applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, and each Owner shall be deemed to have agreed not to hold the
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Depositor, the Property Trustee or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.8 MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain in Chicago, Illinois, an office
or offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities and the Trust
Agreement may be served. The Administrative Trustees initially designate The
First National Bank of Chicago, One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126; Attention: Corporate Trust Department, as the principal
corporate trust office for such purposes. The Administrative Trustees shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency.
Section 5.9 APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company that is acceptable to the Property Trustee and the Depositor) to
act as Paying Agent. The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Paying Agent appointed hereunder and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
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Section 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At each Time of Delivery, the Depositor shall acquire and retain beneficial
and record ownership of all of the Common Securities then issued by the Trust,
in an amount equal to at least 3% of the total capital of the Trust, at the same
time as the Preferred Securities are issued and sold. The aggregate Liquidation
Amount of the Common Securities at any time shall not be less than 3% of the
total capital of the Trust. To the fullest extent permitted by law, other than a
transfer in connection with a consolidation or merger of the Depositor into
another corporation, or any conveyance, transfer or lease by the Depositor of
its properties and assets substantially as an entirety to any Person, pursuant
to Section 8.1 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT (AS
DEFINED BELOW)".
Section 5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON
SECURITIES CERTIFICATE.
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Preferred Securities Certificate or Certificates shall initially be
registered on the Securities Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no beneficial owner will receive a Definitive
Preferred Securities Certificate representing such beneficial owner's interest
in such Preferred Securities, except as provided in Section 5.13. Except for
Definitive Preferred Securities Certificates as specified herein, unless and
until Definitive Preferred Securities Certificates have been issued to
beneficial owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including the
payment of the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities and the giving of instructions or directions to Owners
of Book-Entry Preferred Securities) as the sole Holder of Book-Entry
Preferred Securities and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants; provided,
that solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any
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matter provided for in this Trust Agreement, so long as Definitive
Preferred Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing
Agency setting forth the Owners' votes or assigning the right to vote on
any matter to any other Persons either in whole or in part. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 5.13, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 NOTICES TO CLEARING AGENCY.
(a) To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to act as clearing agency with respect to
the Preferred Securities Certificates, and the Depositor fails to appoint a
qualified successor within 90 days, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (c) after the occurrence of a Debenture Event of Default,
Owners of Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount of the Outstanding
Preferred Securities advise the Property Trustee in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Property Trustee shall notify the Clearing Agency and the Clearing Agency shall
notify all Owners of Preferred Securities Certificates and the other Trustees of
the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Property Trustee of the
typewritten Preferred Securities Certificate or Certificates representing the
Book Entry Preferred Securities Certificates by the Clearing Agency, accompanied
by registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Preferred Securities Certificates in accordance
with the instructions of the Clearing Agency. Neither the Securities Registrar
nor the Trustees shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Securities Certificates,
the Trustees shall recognize the Holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to
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the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Debenture
Issuer, the Debenture Guarantor, the Debenture Trustee and the Property Trustee;
and upon any such declaration such principal amount of and the accrued interest
on all of the Debentures shall become immediately due and payable, provided that
the payment of principal, interest, and any other amounts payable with respect
to such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding, by written notice to the Debenture Issuer, the
Debenture Guarantor, the Debenture Trustee and the Property Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Debenture Issuer or the Debenture Guarantor has paid or
deposited with the Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest) on, and any other Additional Amounts with respect
to, all of the Debentures,
(B) the principal of and premium on any Debentures 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 the Debentures,
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(C) to the extent the 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 the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee, its agents and counsel and all
other amounts due the Debenture Trustee under the Indenture; and
(ii) all Events of Default with respect to the Debentures, other than
the non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to the Debentures which have become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
The Holders of not less than a majority in Liquidation Amount of the
Preferred Securities then Outstanding may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default (i) in the payment of principal of, any premium or interest (including
any Additional Interest) on, or any other Additional Amounts with respect to,
the Debentures or (ii) in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Debenture.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which are represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, any Holder of Preferred Securities shall have the right, upon
a Debenture Event of Default specified in Section
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5.1(1) or 5.1(2) of the Indenture, to institute directly a proceeding against
the Debenture Issuer or the Debenture Guarantor, as the case may be, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal of, and any premium and (subject to the provisions of the Indenture)
interest (including any Additional Interest) on, and any other Additional
Amounts with respect to, such Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). In connection with any such Direct Action, the rights of the Holders
of Common Securities will be subrogated to the rights of any Holder of Preferred
Securities to the extent of any payment made by the Debenture Issuer or the
Debenture Guarantor, as the case may be, to such Holder of Preferred Securities
as a result of such Direct Action. Except as set forth in Section 5.14(b) and
(c), or as otherwise contemplated by the Indenture, the Holders of Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2 and
in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not
(i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such Debentures,
(ii) waive any past default which is waivable under Section 5.13 of
the Indenture,
(iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable, or
(iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
majority in Liquidation Amount of all Outstanding Preferred Securities;
provided, however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of
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each Holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
rendered by counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for United
States Federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect,
(i) any action that would adversely affect in any material respect the
powers, preferences or special rights of the Preferred Securities, whether
by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other
than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. No amendment to
this Trust Agreement may be made if, as a result of such amendment, the
Trust would be classified as an association taxable as a corporation for
United States federal income tax purposes.
Section 6.2 NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which Preferred Securityholders are entitled to vote. Preferred
Securityholders of record of 50% of the Outstanding Preferred Securities (based
upon their Liquidation Amount), present in person or by proxy, shall constitute
a quorum at any meeting of Securityholders. If a quorum is present at a
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meeting, an affirmative vote by the Preferred Securityholders of record present,
in person or by proxy, holding a majority of the Preferred Securities (based
upon their Liquidation Amount) held by the Preferred Securityholders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.4 VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $____ of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
Section 6.5 PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any required approval or action which may be given or taken by
Securityholders at a meeting convened for such purpose may be given or taken
without a meeting and without prior notice if Securityholders holding a majority
of all Outstanding Trust Securities (based upon their Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing.
Section 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or to act by written consent, or to
participate in any distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a
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distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.8 ACTS OF SECURITYHOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section. The fact and
date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient. The ownership of Preferred
Securities shall be proved by the Securities Register. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the
Securityholder of any Trust Security shall bind every future Securityholder of
the same Trust Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Trust Security. Without limiting the foregoing, a
Securityholder entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such Liquidation Amount. If any dispute shall arise between the
Securityholders and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
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Section 6.9 INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Section 7.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and solely as each such representation or warranty applies to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Property Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States, and
the Delaware Trustee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust Agreement,
and, in the case of the Delaware Trustee, satisfies for the Trust Section 3807
of the Delaware Business Trust Act;
(c) this Trust Agreement has been duly authorized, executed and delivered
by each of the Property Trustee and the Delaware Trustee and constitutes the
respective valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Property Trustee
and the Delaware Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Property Trustee or the
Delaware Trustee, as the case may be, and does not require any approval of
stockholders of the Property Trustee or the Delaware Trustee, and such
execution, delivery and performance will not (i) violate the Property Trustee's
or the Delaware Trustee's Charter or By-laws, (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee, as the case may be, is a party or by which it
is bound, or (iii) violate any law, governmental rule or regulation of the
United States or the State of Delaware, as the case may be,
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governing the corporate, banking or trust powers of the Property Trustee or the
Delaware Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee, as the case may be, of this Trust Agreement nor
the consummation of any of the transactions by the Property Trustee or the
Delaware Trustee, as the case may be, contemplated herein or therein requires
the consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority or
agency under any existing Federal law governing the corporate, banking or trust
powers of the Property Trustee or the Delaware Trustee, as appropriate in
context, under the laws of the United States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 7.2 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of Delivery on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
Section 8.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, subject to the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any
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of their duties hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section. To the extent that, at law or in equity, an Administrative Trustee has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Securityholders, such Administrative Trustee shall not be liable
to the Trust or to any Securityholder for such Trustee's good faith reliance on
the provisions of this Trust Agreement. The provisions of this Trust Agreement,
to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.1(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement and, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own bad faith, negligence or willful
misconduct, except that: (i) the Property Trustee undertakes to perform only
those duties specifically set forth in this Agreement, provided that, it must
exercise the same degree of care as a prudent person would exercise in the
conduct of his or her own affairs; (ii) the Property Trustee shall not be liable
for any error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts; (iii) the Property Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement; (iv) the Property Trustee's sole duty with
respect to the custody, safe keeping and physical preservation of the Debentures
and the Payment Account shall be to deal with such Property in a similar manner
as the Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property Trustee
under this Trust Agreement and the Trust Indenture Act; (v) the Property Trustee
shall not be liable for any interest on any money received by it except as it
may otherwise agree with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section 3.1 and
except to the extent otherwise required by law; and (vi) the Property
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Trustee shall not be responsible for monitoring the compliance by the
Administrative Trustees or the Depositor with their respective duties under this
Trust Agreement, nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor.
Section 8.2 CERTAIN NOTICES.
Within five (5) Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived. Within five
Business Days after the receipt of notice of the Debenture Issuer's exercise of
its right to defer the payment of interest on the Debentures pursuant to the
Indenture, the Administrative Trustees shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the Securityholders
and the Property Trustee, unless such exercise shall have been revoked.
Section 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor and the Property Trustee shall be fully
protected in acting in accordance with such instructions; provided, however,
that if the Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
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(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall be responsible for its own
negligence or recklessness with respect to selection of any agent or attorney
appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
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(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Debenture Issuer of the proceeds
of the Debentures.
Section 8.5 MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, except as otherwise provided in the definition of "Outstanding"
in Article I and subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6 COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation for
all services rendered by them hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its bad faith, negligence or willful
misconduct; and
(c) to indemnify each of the Trustees or any predecessor Trustee for, and
to hold the Trustees harmless against, any loss, damage, claims, liability,
penalty or expense incurred without bad faith, negligence or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
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The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement or the resignation or removal of any Trustee. No Trustee may
claim any lien or charge on any Trust Property as a result of any amount due
pursuant to this Section 8.6.
Section 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder. The Property
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 8.8 CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. Subject to the foregoing, the Depositor and any Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage in any
financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
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Section 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity. Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co- trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor. Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
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remove, any such co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
Section 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11. Subject to the
immediately preceding sentence, the Relevant Trustee may resign at any time with
respect to the Trust Securities by giving written notice thereof to the
Depositor. If the instrument of acceptance by the successor Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Depositor, any court of competent jurisdiction
for the appointment of a successor Relevant Trustee with respect to the Trust
Securities. Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). In no event will the Holders of
Preferred Securities have the right to vote to appoint, remove or replace the
Administrative Trustees. An Administrative Trustee may be removed by Act of the
Common Securityholder at any time. If any Trustee shall resign, be removed or
become incapable of acting as Trustee, or if a vacancy shall occur in the office
of any Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees with respect to the Trust Securities and the
Trust, and the retiring Trustee shall comply with the applicable requirements of
Section 8.11. If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property Trustee or the
Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a
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successor Relevant Trustee or Trustees with respect to the Trust Securities and
the Trust, and such successor Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
a Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative Trustee
or Administrative Trustees with respect to the Trust Securities and the Trust,
and such successor Administrative Trustee or Trustees shall comply with the
applicable requirements of Section 8.11. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so appointed by the Common
Securityholder or the Preferred Securityholders and accepted appointment in the
manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee with respect to
the Trust Securities. The Depositor shall give notice of each resignation and
each removal of the Property Trustee or the Delaware Trustee and each
appointment of a successor Property Trustee or Delaware Trustee to all
Securityholders in the manner provided in Section 10.8. Each notice shall
include the name of the successor Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee. Notwithstanding the
foregoing or any other provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (a)
the unanimous act of remaining Administrative Trustees if there are at least two
of them or (b) otherwise by the Depositor (with the successor in each case being
a Person who satisfies the eligibility requirement for Administrative Trustees
set forth in Section 8.7).
Section 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee such successor
Trustee so appointed shall execute, acknowledge and deliver to the Trust and to
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring Property Trustee hereunder. In case of the appointment
hereunder of a successor Relevant Trustee with respect to the Trust Securities
and the Trust, the retiring Relevant Trustee and each successor Relevant Trustee
with respect to the Trust Securities shall execute and deliver an amendment
hereto wherein each successor Relevant Trustee shall accept such appointment and
which
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(a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Trust and
(b) shall add to or change any of the provisions of this Trust Agreement as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood that nothing
herein or in such amendment shall constitute such Relevant Trustees co-trustees
of the same trust and that each such Relevant Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Trust; but, on
request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Relevant Trustee all such rights, powers and trusts referred to
in the first or second preceding paragraph, as the case may be. No successor
Relevant Trustee shall accept its appointment unless at the time of such
acceptance such successor Relevant Trustee shall be qualified and eligible under
this Article.
Section 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee or the Delaware Trustee (or
any Administrative Trustee that is not a natural person) 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 Relevant Trustee
shall be a party, shall be the successor of such Relevant Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
Section 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR, DEBENTURE
ISSUER OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be or become
a creditor of the Depositor, the Debenture Issuer or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the Property Trustee or
the Delaware Trustee, as the case may be, shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
Act regarding the collection of claims against the Depositor, Debenture Issuer
or Trust (or any such other obligor).
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Section 8.14 REPORTS BY PROPERTY TRUSTEE.
(a) Within 60 days after September 15 of each year commencing with the
first September 15 following the first issuance of Preferred Securities pursuant
to this Trust Agreement, the Property Trustee shall transmit to all
Securityholders in accordance with Section 10.8, and to the Depositor, a brief
report dated as of such September 15 with respect to: (i) its eligibility under
Section 8.7 or, in lieu thereof, if to the best of its knowledge it has
continued to be eligible under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of its
obligations under this Trust Agreement during the twelve-month period (or, in
the case of the initial report, the period since the Closing Time) ending with
such September 15 or, if the Property Trustee has not complied in any material
respect with such obligations, a description of such noncompliance; and (iii)
any change in the property and funds in its possession as Property Trustee since
the date of its last report and any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange, interdealer
quotation system or other self-regulatory organization upon which the Trust
Securities are listed or traded, with the Commission and with the Depositor.
Section 8.15 REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
Section 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Holder of all
of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees.
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The Property Trustee and the Delaware Trustee may be the same person if the
Property Trustee meets the applicable requirements.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul,
dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE IX.
DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
Section 9.1 DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2054 (the "Expiration Date").
Section 9.2 EARLY DISSOLUTION.
The first to occur of any of the following events is an "Early Termination
Event", upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Debenture Issuer or the Debenture Guarantor;
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(b) the written direction to the Property Trustee from the Depositor at any
time (which direction is optional and wholly within the discretion of the
Depositor) to dissolve the Trust and distribute a Like Amount of Debentures to
Securityholders in exchange for the Trust Securities;
(c) the redemption of all of the Trust Securities in connection with the
redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3 TERMINATION.
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following:
(a) the distribution by the Property Trustee to Securityholders upon the
liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all
of the Trust Securities pursuant to Section 4.2, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities;
(b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
Section 9.4 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(e).
(b) Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall: (i) state the Liquidation Date; (ii) state that from and
after the Liquidation Date, the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Debentures; and (iii) provide such
information with respect to the mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section 9.4(e) applies, receive a
Liquidation Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(c) Except where Section 9.2(c) or 9.4(e) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a
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record date for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.
(d) Except where Section 9.2(c) or 9.4(e) applies, on and after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to the Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall cause the Debenture Issuer to use its reasonable efforts to
have the Debentures listed or traded on the such stock exchange, interdealer
quotation system and/or other self-regulatory organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities Certificates not
so surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(e) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be wound-up and terminated by
the Property Trustee in such manner as the Property Trustee determines. In such
event, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding up, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
Section 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
TRUST.
The Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other entity, except
pursuant to this Section 9.5 or Section 9.4. The Trust may, at the
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request of the Depositor, with the consent of only the Administrative Trustees
and without the consent of the Holders of the Preferred Securities, merge with
or into, convert into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities or (b) substitutes for the
Preferred Securities other securities having substantially the same terms as the
Preferred Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Depositor has received an Opinion of Counsel rendered by independent
counsel experienced in such matters to the effect that (a) such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect, and (b) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an investment company
under the Investment Company Act and (viii) the Depositor (or any permitted
successor or assignee) owns all of the common securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, convert into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, convert into, or replace it if such consolidation, amalgamation,
merger, conversion, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
48
<PAGE>
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be classified for
United States Federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an investment company under the Investment Company;
provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Securityholder.
Any such amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from status
of an investment company under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date. Notwithstanding
any other provision herein, without the unanimous consent of the
Securityholders, this paragraph (c) of this Section 10.2 may not be amended.
49
<PAGE>
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the Investment Company Act or fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary, this
Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor, the Property Trustee or the Delaware Trustee
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee, as the case may be.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
Section 10.3 SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.4 GOVERNING LAW.
This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware.
Section 10.5 PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
Section 10.6 SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with a consolidation,
merger or sale involving the Depositor that is permitted
50
<PAGE>
under Article Eight of the Indenture and pursuant to which the assignee agrees
in writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7 HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8 REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to ACE INA Holdings
Inc., c/o ACE USA Inc., Six Concourse Parkway, Suite 2500, Atlanta, Georgia
30328, Attention: ___________, facsimile no.: _______________. Any notice to
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
given in writing addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee, to The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: _______________; (b) with respect to the Delaware Trustee, to Bank
One Delaware, Inc., Three Christina Center, 201 North Walnut Street, Wilmington,
Delaware 19801, Attention: ______________________ ; and (c) with respect to the
Administrative Trustees, to them at c/o ACE USA Inc., Six Concourse Parkway,
Suite 2500, Atlanta, Georgia 30328, marked "Attention Administrative Trustees of
ACE Capital Trust II." Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust or the Property
Trustee.
Section 10.9 AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been dissolved in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes
51
<PAGE>
action in violation of this Section 10.9, the Property Trustee agrees, for the
benefit of Securityholders, that at the expense of the Depositor, it shall file
an answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Trustee or the Trust may assert. The
provisions of this Section 10.9 shall survive the termination of this Trust
Agreement.
Section 10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
52
<PAGE>
Section 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
ACE INA HOLDINGS INC., as Depositor
By:
-------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as Property
Trustee
By:
-------------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., as Delaware Trustee
By:
-------------------------------------------
Name:
Title:
-------------------------------------------
Robert A. Blee,
as Administrative Trustee.
-------------------------------------------
Christopher Z. Marshall,
as Administrative Trustee
53
<PAGE>
EXHIBIT A-1
CERTIFICATE OF TRUST
OF
ACE CAPITAL TRUST II
This Certificate of Trust of ACE Capital Trust II (the "Trust"), dated as
of May 19, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del.C. ss. 3801. et seq.)
1. Name. The name of the business trust formed hereby is ACE Capital Trust
II.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware is Bank One
Delaware, Inc., Three Christina Centre, 201 North Walnut Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as trustee
of the trust
By: _________________________________
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee of the
Trust
By: _________________________________
Name:
Title:
---------------------------------------
ROBERT A. BLEE, not in his individual capacity
but solely as trustee of the Trust
A-1-1
<PAGE>
Exhibit A-2
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
FIRST AMENDMENT TO THE
TRUST AGREEMENT OF
ACE CAPITAL TRUST II
This Assignment and Assumption Agreement and First Amendment to the Trust
Agreement of ACE Capital Trust II (the "Trust"), dated as of __________ ___1999
(this "Assignment and Amendment Agreement"), is made and entered into by and
among ACE Limited, a Cayman Islands company limited by shares, as the original
depositor (the "Original Depositor"), ACE INA Holdings Inc., a Delaware
corporation, as the substitute depositor (the "Substitute Depositor"), The First
National Bank of Chicago, a national banking association, as property trustee
(the "Property Trustee"), Bank One Delaware, Inc., a Delaware corporation, as
trustee (the "Delaware Trustee"), and Robert A. Blee, an individual, as trustee
(the "Administrative Trustee") (the Property Trustee, the Delaware Trustee and
the Administrative Trustee being hereinafter collectively referred to as the
"Trustees").
WITNESSETH
WHEREAS, the Trust is a Delaware business trust that was created under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq.
pursuant to (i) the Trust Agreement of the Trust, dated as of May 19, 1999 (the
"Trust Agreement"), and (ii) the Certificate of the Trust of the Trust, dated as
of May 19, 1999, as filed with the office of the Secretary of State of the State
of Delaware on May 19, 1999;
WHEREAS, the Original Depositor, as the depositor under the Trust
Agreement, desires to assign, transfer and convey all of its right, title and
interest in the Trust (the "Depositor's Interest") to the Substitute Depositor,
and the Original Depositor desires to cease to be the depositor of the Trust;
WHEREAS, the Substitute Depositor desires to acquire the Depositor's
Interest currently held by the Original Depositor, and the Substitute Depositor
desires to become the depositor of the Trust; and
WHEREAS, the undersigned, being the Original Depositor, the Substitute
Depositor and all the Trustees of the Trust, to accomplish the foregoing, desire
to amend the Trust Agreement in the manner set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
A-2-1
<PAGE>
1. Assignment. Notwithstanding any provision in the Trust Agreement to the
contrary, for value received, the receipt and sufficiency of which are hereby
acknowledged, upon the execution of this Assignment and Amendment Agreement by
the parties hereto, the Original Depositor does hereby assign, transfer and
convey the Depositor's Interest to the Substitute Depositor.
2. Substitution. Notwithstanding any provision in the Trust Agreement to
the contrary, contemporaneously with the assignment described in Section 1 of
this Assignment and Amendment Agreement, the Substitute Depositor shall become
the depositor of the Trust and shall have all rights, powers and obligations of
the Depositor (as such term is used in the Trust Agreement) under the Trust
Agreement.
3. Cessation. Notwithstanding any provision in the Trust Agreement to the
contrary, immediately following the Substitute Depositor becoming the depositor
of the Trust, the Original Depositor shall cease to be the depositor of the
Trust, and shall thereupon cease to have any right, obligation or power as the
depositor of the Trust.
4. Continuation of the Trust. The parties hereto agree that (i) the
assignment of the Depositor's Interest, the Substitute Depositor becoming the
depositor of the Trust and the Original Depositor's ceasing to be the depositor
of the Trust shall not dissolve the Trust and (ii) the business of the Trust
shall continue without dissolution.
5. Successors and Assigns. This Assignment and Amendment Agreement shall be
binding upon, and shall enure to the benefit of, the parties hereto and their
respective successors and assigns.
6. Full Force and Effect. Except to the extent modified hereby, the Trust
Agreement shall remain in full force and effect.
7. Counterparts. This Assignment and Amendment Agreement may be executed in
counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all such parties are not signatories to
the original or same counterpart.
8. Governing Law. This Assignment and Amendment Agreement shall be
interpreted in accordance with the laws of the State of Delaware (without regard
to conflict of laws principles), all rights and remedies being governed by such
laws.
9. Effectiveness of Amendment. This Assignment and Amendment Agreement
shall become a legally effective and binding instrument as of the date hereof.
[SIGNATURE PAGES FOLLOW]
A-2-2
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
Amendment Agreement as of the day and year first above written.
ACE LIMITED,
as Original Depositor
By: __________________________________
Name:
Title:
ACE INA HOLDINGS INC.
as Substitute Depositor
By: __________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, not in its individual capacity but
solely as trustee of the Trust
By: _________________________________
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee of
the Trust
By: ________________________________
Name:
Title:
------------------------------------
ROBERT A. BLEE, not in his individual
capacity but solely as trustee of the Trust
A-2-3
<PAGE>
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: John C. Drennan
General Counsel's Officer
Re: ACE Capital Trust II _____% Trust Originated Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
issuance and deposit with The Depository Trust Company ("DTC") of the ACE
Capital Trust II ____% Trust Originated Preferred Securities (the "Preferred
Securities"), of ACE Capital Trust II, a Delaware business trust (the "Issuer"),
governed by an Amended and Resated Trust Agreement among ACE INA Holdings Inc.
("ACE INA") and The First National Bank of Chicago, as Property Trustee, Bank
One Delaware, Inc., as Delaware Trustee, and the Administrative Trustees named
therein. The payment of distributions on the Preferred Securities, and payments
due upon liquidation of Issuer or redemption of the Preferred Securities, to the
extent the Issuer has funds available for the payment thereof are guaranteed by
ACE Limited, a Cayman Islands company and the parent of ACE INA ("ACE"), to the
extent set forth in a Guarantee Agreement dated ______________, ____ by ACE with
respect to the Preferred Securities. ACE INA, ACE and the Issuer propose to sell
the Preferred Securities to certain Underwriters (the "Underwriters") pursuant
to an Underwriting Agreement dated __________, 1999 by and among the
Underwriters, the Issuer, ACE INA and ACE dated _____, ____, and the
Underwriters wish to take delivery of the Preferred Securities through DTC. The
First National Bank of Chicago is acting as transfer agent and registrar with
respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for deposit at
DTC, and to act in accordance with DTC's rules with respect to the Preferred
Securities, the Issuer, the Transfer Agent and Registrar and DTC agree among
each other as follows:
(1) Prior to the closing of the sale of the Preferred Securities to the
Underwrites, which is expected to occur on or about _________________, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of Preferred
Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer,
B-1
<PAGE>
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
(2) The Amended and Restated Trust Agreement of the Issuer provides for the
voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
(3) In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
(4) In the event of distribution on, or an offering or issuance of rights
with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
B-2
<PAGE>
The Issuer or the Transfer Agent and Registrar shall confirm DTC's receipt
of such telecopy by telephoning the Dividend Department at (212) 709-1270.
(5) In the event of a redemption by the Issuer of the Preferred Securities,
notice specifying the terms of the redemption and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC
not less than 30 calendar days prior to such event by a secure means in the
manner set forth in paragraph 4. Such redemption notice shall be sent to DTC's
Call Notification Department at (516) 227-4164 or (516) 227-4190, and receipt of
such notice shall be confirmed by telephoning (516) 227-4070. Notice by mail or
by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719.
(6) In the event of any invitation to tender the Preferred Securities, notice
specifying the terms of the tender and the Publication Date of such notice shall
be sent by the Issuer or the Transfer Agent and Registrar to DTC by a secure
means and in a timely manner as described in paragraph 4. Notices to DTC
pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
(7) All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is ACE
Capital Trust II _____% Trust Originated Preferred Securities.
(8) Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
B-3
<PAGE>
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
(9) DTC may be prior written notice direct the Issuer and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
(10) In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
(11) DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer of the Transfer
Agent and Registrar.
(12) In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
B-4
<PAGE>
(13) This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of ACE Capital Trust II.
Very truly yours,
ACE CAPITAL TRUST II
(As Issuer)
[Name of Trustee]
By: _________________________________________
Administrative Trustee
By: _________________________________________
Name:
Title:
---------------------------------------------
(As Transfer Agent and Registrar)
By: _________________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:________________________________
Authorized Officer
B-4
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number Number of Common Securities
C-__ ______
Certificate Evidencing Common Securities
of
ACE CAPITAL TRUST II
_____% Common Securities
(liquidation amount $_____ per Common Security)
ACE Capital Trust II, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that ACE INA Holdings Inc.
(the "Holder") is the registered owner of _________________________ (________)
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the _____% Common Securities (liquidation
amount $______ per Common Security) (the "Common Securities"). In accordance
with Section 5.10 of the Trust Agreement (as defined below) the Common
Securities are not transferable and any attempted transfer hereof shall be void.
The designations, and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of __________, 1999, as the same may be amended from time
to time (the "Trust Agreement"), including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
C-1
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____ day of __________, 1999.
ACE CAPITAL TRUST II
By:____________________________________
Name:
Administrative Trustee
C-2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________, 1999, between ACE Limited, a Cayman
Islands Company ("ACE"), and ACE Capital Trust II, a Delaware business trust
(the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from ACE INA Holdings Inc., a Delaware
corporation and a wholly owned subsidiary ACE ("ACE INA"), and to issue and sell
_____% Trust Originated Preferred Securities (the "Preferred Securities") with
such powers, preferences and special rights and restrictions as are set forth in
the Amended and Restated Trust Agreement of the Trust dated as of __________,
1999, as the same may be amended from time to time (the "Trust Agreement');
WHEREAS, ACE INA will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
WHEREAS, ACE will guarantee the obligations of ACE INA under the Debentures
and has agreed to guarantee certain expenses and limitations of the Trust as
provided herein;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase ACE hereby agrees shall benefit ACE and
which purchase ACE acknowledges will be made in reliance upon the execution and
delivery of this Agreement, ACE and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY ACE.
Subject to the terms and conditions hereof, ACE hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date one which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
D-1
<PAGE>
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof between
ACE, in its capacity as guarantor with respect to the Preferred Securities,
and The First National Bank of Chicago, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.3. WAIVER OF NOTICE.
ACE hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and ACE hereby waives presentment,
demand for payment, protest, notices of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of ACE under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, ACE with respect to the happening of any of the foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against ACE and ACE
waives any right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against ACE.
SECTION 1.6. SUBROGATION.
ACE shall be subrogated to all (if any) rights of the Trust in respect of
any amounts paid to the Beneficiaries by ACE under this Agreement; provided,
however, that ACE shall not (except to
D-2
<PAGE>
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II.
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of ACE and shall
inure to the benefit of the Beneficiaries.
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred Securities are
outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Preferred Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
ACE Capital Trust II
c/o ACE USA Inc.
Six Concourse Parkway
Suite 2500
Atlanta, Georgia 30328
Facsimile:
Attention:
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton 08
Bermuda
Facsimile:
Attention:
SECTION 2.4 GOVERNING LAW.
D-3
<PAGE>
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
THIS AGREEMENT is executed as of the day and year first above written.
ACE LIMITED
By: ________________________________________
Name:
Title:
ACE CAPITAL TRUST II
By: ________________________________________
Name:
Title:
D-4
<PAGE>
EXHIBIT E
This Preferred Security is a Global Certificate within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to ACE
Capital Trust II or its agent for registration of transfer, exchange or payment,
and any Preferred Security issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
P-___ __________
Certificate Evidencing Preferred Securities
Of
ACE CAPITAL TRUST II
_____% Trust Originated Preferred Securities
(liquidation amount $__________ per Preferred Security)
ACE Capital Trust II, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of __________ (__________) preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the ACE Capital Trust II _____% Trust
Originated Preferred Securities (Liquidation Amount $_____ per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and
E-1
<PAGE>
provisions of the Amended and Restated Trust Agreement of the Trust, dated as of
__________, 1999, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by ACE Limited, a Cayman Islands company, and The First
National Bank of Chicago, as guarantee trustee, dated as of __________, 1999
(the "Guarantee"), to the extent provided therein. The Trust will furnish a copy
of the Trust Agreement and the Guarantee to the Holder without charge upon
written recruits to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____th day of __________, 1999.
ACE CAPITAL TRUST II
By: _______________________________________
Name:
Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
E-2
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: __________
Signature: ___________________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
SIGNATURE(S) GUARANTEED:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATION AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
E-3
<PAGE>
Exhibit 4.17
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
ACE INA HOLDINGS INC., AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE
BANK ONE DELAWARE, INC.,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF _________________, 1999
ACE CAPITAL TRUST III
================================================================================
<PAGE>
Table of Contents
Page
----
ARTICLE I. DEFINED TERMS
Section 1.1 DEFINITIONS........................................................2
ARTICLE II. ESTABLISHMENT OF THE TRUST
Section 2.1 NAME..............................................................10
Section 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL
PLACE OF BUSINESS.........................................10
Section 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES...................................10
Section 2.4 ISSUANCE OF THE PREFERRED SECURITIES..............................10
Section 2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF DEBENTURES....................................11
Section 2.6 DECLARATION OF TRUST..............................................11
Section 2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS..................12
Section 2.8 ASSETS OF TRUST...................................................15
Section 2.9 TITLE TO TRUST PROPERTY...........................................15
ARTICLE III. PAYMENT ACCOUNT
Section 3.1 PAYMENT ACCOUNT...................................................16
ARTICLE IV. CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1 DISTRIBUTIONS.....................................................16
Section 4.2 REDEMPTION........................................................18
Section 4.3 SUBORDINATION OF COMMON SECURITIES................................20
Section 4.4 PAYMENT PROCEDURES................................................20
Section 4.5 TAX RETURNS AND REPORTS...........................................20
Section 4.6 PAYMENT OF TAXES, DUTIES, ETC.OF THE TRUST........................21
Section 4.7 PAYMENTS UNDER INDENTURE..........................................21
ARTICLE V. TRUST SECURITIES CERTIFICATES
Section 5.1 INITIAL OWNERSHIP.................................................21
Section 5.2 THE TRUST SECURITIES CERTIFICATES.................................21
Section 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES. 22
Section 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.........................22
Section 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES...................................23
Section 5.6 PERSONS DEEMED SECURITYHOLDERS....................................23
Section 5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES............23
Section 5.8 MAINTENANCE OF OFFICE OR AGENCY...................................24
Section 5.9 APPOINTMENT OF PAYING AGENT.......................................24
Section 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR......................25
i
<PAGE>
Section 5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON
SECURITIES CERTIFICATE....................................25
Section 5.12 NOTICES TO CLEARING AGENCY.......................................26
Section 5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES.....................26
Section 5.14 RIGHTS OF SECURITYHOLDERS........................................27
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1 LIMITATIONS ON VOTING RIGHTS......................................29
Section 6.2 NOTICE OF MEETINGS................................................30
Section 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.............................30
Section 6.4 VOTING RIGHTS.....................................................31
Section 6.5 PROXIES, ETC......................................................31
Section 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT..........................31
Section 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES.........................31
Section 6.8 ACTS OF SECURITYHOLDERS...........................................32
Section 6.9 INSPECTION OF RECORDS.............................................33
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
Section 7.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE..................................33
Section 7.2 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.......................34
ARTICLE VIII. THE TRUSTEES
Section 8.1 CERTAIN DUTIES AND RESPONSIBILITIES...............................34
Section 8.2 CERTAIN NOTICES...................................................36
Section 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE................................36
Section 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES............38
Section 8.5 MAY HOLD SECURITIES...............................................38
Section 8.6 COMPENSATION; INDEMNITY; FEES.....................................38
Section 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES..................................................39
Section 8.8 CONFLICTING INTERESTS.............................................39
Section 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE..................................40
Section 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR................41
Section 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...........................42
Section 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS..................................................43
Section 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR,
DEBENTURE ISSUER OR TRUST.................................43
Section 8.14 REPORTS BY PROPERTY TRUSTEE......................................44
Section 8.15 REPORTS TO THE PROPERTY TRUSTEE..................................44
Section 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.................44
Section 8.17 NUMBER OF TRUSTEES...............................................45
Section 8.18 DELEGATION OF POWER..............................................45
ARTICLE IX. DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
ii
<PAGE>
Section 9.1 DISSOLUTION UPON EXPIRATION DATE..................................46
Section 9.2 EARLY DISSOLUTION.................................................46
Section 9.3 TERMINATION.......................................................46
Section 9.4 LIQUIDATION.......................................................46
Section 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS
OF THE TRUST..............................................48
ARTICLE X. MISCELLANEOUS PROVISIONS
Section 10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS..........................49
Section 10.2 AMENDMENT........................................................49
Section 10.3 SEPARABILITY.....................................................50
Section 10.4 GOVERNING LAW....................................................50
Section 10.5 PAYMENTS DUE ON NON-BUSINESS DAY.................................51
Section 10.6 SUCCESSORS.......................................................51
Section 10.7 HEADINGS.........................................................51
Section 10.8 REPORTS, NOTICES AND DEMANDS.....................................51
Section 10.9 AGREEMENT NOT TO PETITION........................................52
Section 10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT..........52
Section 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE...................................53
Exhibit A-1 CERTIFICATE OF TRUST OF ACE CAPITAL TRUST III
Exhibit A-2 ASSIGNMENT AND ASSUMPTION AGREEMENT AND
FIRST AMENDMENT
Exhibit B LETTER TO DTC PERTAINING TO THE TRUST ORIGINATED
PREFERRED SECURITIES
Exhibit C CERTIFICATE EVIDENCING COMMON SECURITIES OF ACE CAPITAL
TRUST III
Exhibit D AGREEMENT AS TO EXPENSES AND LIABILITIES
Exhibit E CERTIFICATE EVIDENCING PREFERRED SECURITIES OF ACE CAPITAL
TRUST III
iii
<PAGE>
ACE CAPITAL TRUST III
CERTAIN SECTIONS OF THIS TRUST AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE TRUST
ACT SECTION AGREEMENT SECTION
- --------------- -----------------
ss.310(a)(1).................................................................8.7
(a) (2)......................................................................8.7
(a) (3)......................................................................8.9
(a) (4)...............................................................2.7(a)(ii)
(b)..........................................................................8.8
ss. 311(a)..................................................................8.13
(b).........................................................................8.13
ss. 312(a)...................................................................5.7
(b)..........................................................................5.7
(c)..........................................................................5.7
ss. 313(a)...............................................................8.14(a)
(a)(4)...................................................................8.14(b)
(b)......................................................................8.14(b)
(c).........................................................................10.8
(d)......................................................................8.14(c)
ss.314(a)...................................................................8.15
(b)...............................................................Not Applicable
(c)(1)......................................................................8.16
(c)(2)......................................................................8.16
(c) (3)...........................................................Not Applicable
(d)...............................................................Not Applicable
(e)....................................................................1.1, 8.16
ss. 315(a)........................................................8.1(a), 8.3(a)
(b)....................................................................8.2, 10.8
(c).......................................................................8.1(a)
(d).....................................................................8.1, 8.3
(e)...............................................................Not Applicable
ss.316(a).........................................................Not Applicable
(a)(1)(A).........................................................Not Applicable
(a)(1)(B).........................................................Not Applicable
(a) (2)...........................................................Not Applicable
(b)...............................................................Not Applicable
(c)..........................................................................6.7
ss.317(a) (1).....................................................Not Applicable
(a) (2)...........................................................Not Applicable
(b)..........................................................................5.9
ss.318(a)..................................................................10.10
- ---------
Note: This reconciliation and tie sheet shall not, for any purpose be deemed to
be a part of the Trust Agreement.
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________, 1999, among
(i) ACE INA HOLDINGS INC., a corporation duly organized and existing under the
laws of the State of Delaware (including any successors or assigns, the
"Depositor"), (ii) THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association duly organized and existing under the laws of the United States, as
property trustee (the "Property Trustee" and, in its individual capacity and not
in its capacity as Property Trustee, the "Bank"), (iii) BANK ONE DELAWARE, INC.,
a Delaware corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee,"), (iv) Robert A. Blee, an individual, and Christopher Z. Marshall, an
individual, each of whose address is c/o ACE USA, Inc., Six Concourse Parkway,
Suite 2500, Atlanta, Georgia 30328 (each an "Administrative Trustee" and
collectively, the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees are referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, ACE Limited, as original sponsor of the Trust (the "Original
Depositor") and certain of the Trustees (the "Original Trustees") have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of May 19, 1999 (the "Initial Trust Agreement"), and by the
execution by the Original Trustees and filing with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on May 19, 1999 (the
"Certificate of Trust"), attached as Exhibit A-1;
WHEREAS, the Original Depositor has assigned to the Depositor, and the
Depositor has assumed, all of the Original Depositor's right, title and interest
in and to, and its obligations as Trust sponsor under, the Initial Trust
Agreement, pursuant to the Assignment and Assumption Agreement and First
Amendment to the Trust Agreement dated as of _________, 1999 (the "Amendment"),
between the Original Depositor, the Depositor and the Original Trustees, (the
Initial Trust Agreement as amended by the Amendment being hereinafter referred
to as the "Original Trust Agreement") attached as Exhibit A-2; and
WHEREAS, the Depositor (as successor Trust sponsor) and the Trustees desire
to amend and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities by the Trust pursuant to the Underwriting Agreement, (iii)
the acquisition by the Trust from the Debenture Issuer (as hereinafter defined)
of all of the right, title and interest in the Debentures and (iv) the
appointment of additional Administrative Trustees;
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, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
<PAGE>
ARTICLE I.
DEFINED TERMS
Section 1.1 DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amounts" means, with respect to Trust Securities of a given
Liquidation Amount, for a given period, the amount of any Additional Interest
and any Additional Amounts (as defined in the Indenture) paid by the Debenture
Issuer or the Debenture Guarantor on a Like Amount of Debentures for such
period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Sums" has the meaning specified in Section 10.9 of the
Indenture.
"Administrative Trustee" means each of ________________________, and
_____________________, solely in such Person's capacity as Administrative
Trustee of the Trust and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
2
<PAGE>
"Bankruptcy Event" means, with respect to any Person: (a) the entry of a
decree or order by a court having jurisdiction in the premises judging such
Person a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of such
Person or of any substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or (b) the
institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or the consent by
it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or similar official) of such Person
or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Law" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution, certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, delivered to the appropriate Trustee or Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial interest
in the Preferred Securities Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and DTC, as the initial Clearing Agency, dated as of the Closing Date,
relating to the Trust Securities Certificates, substantially in the form
attached as Exhibit B, as the same may be amended and supplemented from time to
time.
"Certificate of Trust" has the meaning specified in the recitals to this
Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. DTC
will be the initial Clearing Agency.
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"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Time" has the meaning specified in the Underwriting Agreement,
which date is also the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $____ and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office " means the principal office of the Property
Trustee located in Chicago, Illinois.
"Date of Delivery" has the meaning specified in the Underwriting Agreement.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Guarantor" means ACE Limited, a Cayman Islands company, in its
capacity as guarantor under the Indenture, and its successors.
"Debenture Issuer" means ACE INA Holdings Inc., a Delaware corporation, in
its capacity as the issuer of the Debentures under the Indenture, and its
successors.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, in its capacity as trustee under the Indenture, or any successor trustee
appointed as therein provided.
"Debentures" means the aggregate principal amount of the Debenture Issuer's
__% Junior Subordinated Deferrable Interest Debentures due _________, issued
pursuant to the Indenture.
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"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificates as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the first paragraph of this Trust Agreement solely in its capacity
as Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event 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): (a) the occurrence of a Debenture Event of
Default; or (b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or (c) default by the Property Trustee in the payment
of any Redemption Price of any Trust Security when it becomes due and payable;
or (d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or (e) the
occurrence of a Bankruptcy Event with respect to the Property Trustee and the
failure by the Depositor to appoint a successor Property Trustee within 60 days
thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
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"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Preferred Securities Guarantor and The First National Bank of Chicago, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Subordinated Indenture, dated as of ____________,
1999, among the Debenture Issuer, the Debenture Guarantor and the Debenture
Trustee, as trustee, as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $____ per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a dissolution and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman, the President, any Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Depositor, that complies with the requirements of Section 314(e) of the
Trust Indenture Act and is delivered to the appropriate Trustee or Trustees.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor, as the case may be, or
other counsel who shall be reasonably acceptable to the Property Trustee, that,
if required by the Trust Indenture Act, complies with the requirements of
Section 314(e) of the Trust Indenture Act.
"Original Depositor" has the meaning specified in the recitals to this
Trust Agreement.
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"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Original Trustees" has the meaning specified in the recitals to this Trust
Agreement.
"Outstanding," when used with respect to Preferred Securities, means, as of
the date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13, unless there
shall have been presented to the Property Trustee proof satisfactory
to it that such Preferred Security is held by a bona fide purchaser in
whose hand such Preferred Security is a valid obligation of the Trust;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or are present at a meeting of Securityholders for quorum purposes, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee, shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
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"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Paying Agent in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $____ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit E.
"Preferred Securities Guarantor" means ACE Limited, a Cayman Islands
Company, in its capacity as guarantor under the Guarantee, and its successors.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, and any Additional Amounts paid by the Debenture Issuer or the Debenture
Guarantor upon the concurrent redemption of a Like Amount of Debentures,
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
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"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Securities is registered in the Securities Register; any such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that in determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, then for purposes of any such determination, so long as
Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Time of Delivery" means, collectively, the Closing Time and each Date of
Delivery.
"Trust" means the Delaware business trust created by the Original Trust
Agreement and the Certificate of Trust and continued hereby and identified on
the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
__________, 1999, among the Trust, the Depositor, ACE Limited and the
Underwriters named therein.
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ARTICLE II.
ESTABLISHMENT OF THE TRUST
Section 2.1 NAME.
The Trust continued hereby shall be known as "ACE Capital Trust III," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
Section 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is Three
Christina Centre, 201 North Walnut Street, Wilmington, Delaware 19801, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Depositor. The principal executive office of the Trust is
c/o ACE USA Inc., Six Concourse Parkway, Suite 2500, Atlanta, Georgia 30328.
Section 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES.
The Trustees acknowledge receipt in trust from the Original Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.4 ISSUANCE OF THE PREFERRED SECURITIES.
The Depositor, on behalf of the Trust and as successor Trust sponsor under
the Original Trust Agreement, has executed and delivered the Underwriting
Agreement. At the Closing Time, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of ____________ Preferred Securities having an
aggregate Liquidation Amount of $___________, against receipt of such aggregate
purchase price of such Preferred Securities of $________, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. On each
Date of Delivery, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named in
the Underwriting Agreement Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of up
to __________ Preferred Securities (less such number of Preferred Securities
evidenced by Preferred Securities Certificates executed and delivered on any
prior Dates
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of Delivery) having an aggregate Liquidation Amount of up to $__________ (less
the aggregate Liquidation Amount of any Preferred Securities evidenced by
Preferred Securities Certificates executed and delivered on any prior Dates of
Delivery), against receipt of such aggregate purchase price of such Preferred
Securities of $___________ (less the aggregate Liquidation Amount of any
Preferred Securities evidenced by Preferred Securities Certificates executed and
delivered on any prior Dates of Delivery), which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
Section 2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF
DEBENTURES.
(a) At the Closing Time, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of _________ Common Securities having an aggregate Liquidation
Amount of $_________, against payment by the Depositor of such amount, which
amount such Administrative Trustee shall promptly deliver to the Property
Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Trust, shall subscribe to and purchase from the Debenture Issuer Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Debenture Issuer the sum of $__________. On each Date of Delivery, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of up to
__________ Common Securities (less such number of Common Securities evidenced by
Common Securities Certificates executed and delivered on any prior Dates of
Delivery) having an aggregate Liquidation Amount of up to $__________ (less the
aggregate Liquidation Amount of any Common Securities evidenced by Common
Securities Certificates executed and delivered on any prior Dates of Delivery),
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
(b) At the Closing Time and on each Date of Delivery, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Debenture Issuer Debentures, registered in the name of the Trust and having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities and Common Securities issued and sold on such date, and, in
satisfaction of the purchase price for such Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Debenture Issuer the amount received
on such date from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4.
Section 2.6 DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures,
and (b) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust
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Property upon and subject to the conditions set forth herein for the benefit of
the Securityholders. The Administrative Trustees shall have all rights, powers
and duties set forth herein and in accordance with applicable law with respect
to accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Trustees set forth herein except as required
by the Delaware Business Trust Act. The Delaware Trustee shall be one of the
Trustees of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Delaware Business Trust Act.
Section 2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section and Article VIII, and in accordance with the
following provisions (i) and (ii), the Administrative Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and to perform all
acts in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each of the Administrative Trustees, acting
singly or together, shall have the power and authority to act on behalf of
the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) to assist in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;
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(F) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(G) the establishment of a record date for any of the purposes
contemplated by Section 6.7 hereof;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any or
all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
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(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder); and
(J) engaging in such ministerial activities as shall be
necessary, appropriate, convenient or incidental to effect the
repayment of the Preferred Securities and the Common Securities to the
extent the Debentures mature or are redeemed.
Except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not cause the Trust to (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take any action that
would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to
the Trustees of actions they must take on behalf of the Trust, and the
preparation
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for execution and filing of any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on behalf
of the Trust of an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) the taking of any other actions deemed by the Depositor to be
necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act or
classified as an association taxable as a corporation for United States Federal
income tax purposes and so that the Debentures will be treated as indebtedness
of the Debenture Issuer for United States Federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in their discretion to be necessary or desirable for such purposes,
as long as such action does not adversely affect in any material respect the
interests of the Holders of the Preferred Securities.
Section 2.8 ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
Section 2.9 TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
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ARTICLE III.
PAYMENT ACCOUNT
Section 3.1 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1 DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the payment
of Distributions. Distributions shall accrue from __________, ____, and shall be
payable quarterly in arrears on _________, _______, ______ and ________ of each
year, commencing on __________, _____, except as otherwise described below. The
Debenture Issuer has the right under the Indenture, at any time and from time to
time, to defer payments of interest for such period or periods as may be
specified with respect to the Debentures (each, an "Extension Period"), on the
terms and conditions specified in the Indenture. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate at the rate set forth in paragraph (b)
of this Section 4.1, together with additional distributions thereon (to the
extent permitted by applicable law) at the rate at which Additional Interest is
then accruing on the Debentures, compounded quarterly during any such Extension
Period. If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall be
made on the next succeeding day that is a Business Day (and without any
additional distributions or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date such payment was
originally payable (each date on which distributions are payable in accordance
with this Section 4.1(a), a "Distribution Date").
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(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable at a rate of __% per annum of the Liquidation Amount
of the Trust Securities. The term "Distributions" as used herein includes such
cash distributions and any accumulated or additional distributions that are
payable hereunder unless otherwise stated. The amount of Distributions payable
for any full or partial period shall be computed on the basis of a 360-day year
of twelve 30-day months. The amount of Distributions payable for any period
shall include Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register at the close of business on the relevant record date, which, as long as
the Preferred Securities remain in book-entry only form, shall be the date one
Business Day immediately preceding such Distribution Date. The relevant record
dates for the Common Securities shall be the same record dates as for the
Preferred Securities. If the Preferred Securities shall not continue to remain
in book-entry only form or are not in book-entry only form at issuance, the
relevant record dates for the Preferred Securities shall be the date 15 days
prior to the relevant Distribution Date, which Distribution Dates shall
correspond to the interest payment dates on the Debentures. Distributions
payable on any Trust Securities that are not punctually paid on any Distribution
Date, as a result of the Debenture Issuer (or the Debenture Guarantor on its
behalf) having failed to make an interest payment under the Debentures, will
cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Trust Securities are
registered on the special record date or other specified date for determining
Debentureholders entitled to such defaulted interest established in accordance
with the Indenture.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed pro rata among the Holders of the Trust Securities. A reference
herein to any payment, distribution or treatment as being "pro rata" shall mean
pro rata to each Holder of Trust Securities according to the aggregate
Liquidation Amount of the Trust Securities held by the relevant Holder in
relation to the aggregate Liquidation Amount of all Trust Securities outstanding
unless, in relation to a payment, a Debenture Event of Default has occurred and
is continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to the
aggregate Liquidation Amount of Preferred Securities held by the relevant Holder
relative to the aggregate Liquidation Amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate Liquidation Amount of Common Securities held by the relevant
Holder relative to the aggregate Liquidation Amount of all Common Securities
outstanding.
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Section 4.2 REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at a price per Trust Security equal to the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption (which notice
shall be irrevocable) in respect of any Preferred Securities, then, by 12:00
noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the relevant Persons' accounts at such Clearing Agency on
the applicable Redemption Date. If the Preferred Securities are no longer in
book-entry-only form, and in the case of the Common Securities, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Trust Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities
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on the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit, all
rights of Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption Price
and any Distributions payable on or prior to the Redemption Date, but without
interest, and such Securities will cease to be outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Preferred Securities Guarantor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made
to the recordholders thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be one Business Day
prior to the relevant Redemption Date; provided, however, that in the event that
the Preferred Securities do not remain in book-entry-only form, the relevant
record date shall be the date fifteen days prior to the relevant Redemption
Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $____ or an integral multiple of $____ in excess thereof)
of the Liquidation Amount of Preferred Securities of a denomination larger than
$____. The Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
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Section 4.3 SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made, subject to Section 4.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any Event
of Default resulting from a Debenture Event of Default shall have occurred and
be continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
Section 4.4 PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the applicable distribution dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
Section 4.5 TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall
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(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service Form required to be filed in respect of the Trust in
each taxable year of the Trust and
(b) prepare and furnish (or cause to be prepared and furnished) to each
Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority.
Section 4.7 PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (and any Owner
with respect thereto) has directly received pursuant to Section 5.8 of the
Indenture.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
Section 5.1 INITIAL OWNERSHIP.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
Section 5.2 THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of $____ Liquidation Amount and integral multiples of $____ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $____ Liquidation Amount and integral multiples of $____ in
excess thereof. The Trust Securities Certificates shall be executed on behalf of
the Trust by manual signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject
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to the obligations of a Securityholder hereunder, upon due registration of such
Trust Securities Certificate in such transferee's name pursuant to Sections 5.4,
5.11 and 5.13.
Section 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
At each Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its Chairman of the Board, a
Vice Chairman, its President, a Vice President or its Treasurer and attested by
its Secretary or one of its Assistant Secretaries, without further corporate
action by the Depositor, in authorized denominations.
Section 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES
CERTIFICATES.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register"). The registrar
designated by the Depositor (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Preferred Securities Certificates and Common Securities Certificates (subject
to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. The Bank shall be the initial Securities Registrar. Upon
surrender for registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to Section 5.8, the Administrative
Trustees or any one of them shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities after such Preferred Securities have been called for
redemption. At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 5.8. Every Preferred Securities
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory to
an Administrative Trustee and the Securities Registrar duly executed by the
Holder or his attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by an Administrative Trustee in
accordance with customary practice. Registration of transfers or exchanges of
Preferred Securities Certificates shall be effected without service charge by or
on behalf of the Trust, but the Securities Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such transfer or exchange.
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Section 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.
Section 5.6 PERSONS DEEMED SECURITYHOLDERS.
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Administrative Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving distributions and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees shall furnish or cause to be furnished (x) to
the Depositor, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request therefor from
the Property Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in such form as
the Depositor or the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the previous
six months of not less than 25% of the Outstanding aggregate Liquidation Amount
apply in writing to any Administrative Trustee, and such application states that
the applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, and each Owner shall be deemed to have agreed not to hold the
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Depositor, the Property Trustee or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.8 MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain in Chicago, Illinois, an office
or offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities and the Trust
Agreement may be served. The Administrative Trustees initially designate The
First National Bank of Chicago, One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126; Attention: Corporate Trust Department, as the principal
corporate trust office for such purposes. The Administrative Trustees shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency.
Section 5.9 APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company that is acceptable to the Property Trustee and the Depositor) to
act as Paying Agent. The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Paying Agent appointed hereunder and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
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Section 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At each Time of Delivery, the Depositor shall acquire and retain beneficial
and record ownership of all of the Common Securities then issued by the Trust,
in an amount equal to at least 3% of the total capital of the Trust, at the same
time as the Preferred Securities are issued and sold. The aggregate Liquidation
Amount of the Common Securities at any time shall not be less than 3% of the
total capital of the Trust. To the fullest extent permitted by law, other than a
transfer in connection with a consolidation or merger of the Depositor into
another corporation, or any conveyance, transfer or lease by the Depositor of
its properties and assets substantially as an entirety to any Person, pursuant
to Section 8.1 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT (AS
DEFINED BELOW)".
Section 5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON
SECURITIES CERTIFICATE.
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Preferred Securities Certificate or Certificates shall initially be
registered on the Securities Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no beneficial owner will receive a Definitive
Preferred Securities Certificate representing such beneficial owner's interest
in such Preferred Securities, except as provided in Section 5.13. Except for
Definitive Preferred Securities Certificates as specified herein, unless and
until Definitive Preferred Securities Certificates have been issued to
beneficial owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including the
payment of the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities and the giving of instructions or directions to Owners
of Book-Entry Preferred Securities) as the sole Holder of Book-Entry
Preferred Securities and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants; provided,
that solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any
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matter provided for in this Trust Agreement, so long as Definitive
Preferred Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing
Agency setting forth the Owners' votes or assigning the right to vote on
any matter to any other Persons either in whole or in part. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 5.13, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 NOTICES TO CLEARING AGENCY.
(a) To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to act as clearing agency with respect to
the Preferred Securities Certificates, and the Depositor fails to appoint a
qualified successor within 90 days, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (c) after the occurrence of a Debenture Event of Default,
Owners of Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount of the Outstanding
Preferred Securities advise the Property Trustee in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Property Trustee shall notify the Clearing Agency and the Clearing Agency shall
notify all Owners of Preferred Securities Certificates and the other Trustees of
the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Property Trustee of the
typewritten Preferred Securities Certificate or Certificates representing the
Book Entry Preferred Securities Certificates by the Clearing Agency, accompanied
by registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Preferred Securities Certificates in accordance
with the instructions of the Clearing Agency. Neither the Securities Registrar
nor the Trustees shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Securities Certificates,
the Trustees shall recognize the Holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to
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the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Debenture
Issuer, the Debenture Guarantor, the Debenture Trustee and the Property Trustee;
and upon any such declaration such principal amount of and the accrued interest
on all of the Debentures shall become immediately due and payable, provided that
the payment of principal, interest, and any other amounts payable with respect
to such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding, by written notice to the Debenture Issuer, the
Debenture Guarantor, the Debenture Trustee and the Property Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Debenture Issuer or the Debenture Guarantor has paid or
deposited with the Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest) on, and any other Additional Amounts with respect
to, all of the Debentures,
(B) the principal of and premium on any Debentures 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 the Debentures,
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(C) to the extent the 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 the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee, its agents and counsel and all
other amounts due the Debenture Trustee under the Indenture; and
(ii) all Events of Default with respect to the Debentures, other than
the non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to the Debentures which have become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
The Holders of not less than a majority in Liquidation Amount of the
Preferred Securities then Outstanding may, on behalf of the Holders of all the
Preferred Securities, waive any past default under the Indenture, except a
default (i) in the payment of principal of, any premium or interest (including
any Additional Interest) on, or any other Additional Amounts with respect to,
the Debentures or (ii) in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Debenture.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which are represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, any Holder of Preferred Securities shall have the right, upon
a Debenture Event of Default specified in Section
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5.1(1) or 5.1(2) of the Indenture, to institute directly a proceeding against
the Debenture Issuer or the Debenture Guarantor, as the case may be, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal of, and any premium and (subject to the provisions of the Indenture)
interest (including any Additional Interest) on, and any other Additional
Amounts with respect to, such Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). In connection with any such Direct Action, the rights of the Holders
of Common Securities will be subrogated to the rights of any Holder of Preferred
Securities to the extent of any payment made by the Debenture Issuer or the
Debenture Guarantor, as the case may be, to such Holder of Preferred Securities
as a result of such Direct Action. Except as set forth in Section 5.14(b) and
(c), or as otherwise contemplated by the Indenture, the Holders of Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2 and
in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not
(i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such Debentures,
(ii) waive any past default which is waivable under Section 5.13 of
the Indenture,
(iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable, or
(iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
majority in Liquidation Amount of all Outstanding Preferred Securities;
provided, however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of
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each Holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
rendered by counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for United
States Federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect,
(i) any action that would adversely affect in any material respect the
powers, preferences or special rights of the Preferred Securities, whether
by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other
than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. No amendment to
this Trust Agreement may be made if, as a result of such amendment, the
Trust would be classified as an association taxable as a corporation for
United States federal income tax purposes.
Section 6.2 NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which Preferred Securityholders are entitled to vote. Preferred
Securityholders of record of 50% of the Outstanding Preferred Securities (based
upon their Liquidation Amount), present in person or by proxy, shall constitute
a quorum at any meeting of Securityholders. If a quorum is present at a
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meeting, an affirmative vote by the Preferred Securityholders of record present,
in person or by proxy, holding a majority of the Preferred Securities (based
upon their Liquidation Amount) held by the Preferred Securityholders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.4 VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $____ of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
Section 6.5 PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any required approval or action which may be given or taken by
Securityholders at a meeting convened for such purpose may be given or taken
without a meeting and without prior notice if Securityholders holding a majority
of all Outstanding Trust Securities (based upon their Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing.
Section 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or to act by written consent, or to
participate in any distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a
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distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.8 ACTS OF SECURITYHOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section. The fact and
date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient. The ownership of Preferred
Securities shall be proved by the Securities Register. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the
Securityholder of any Trust Security shall bind every future Securityholder of
the same Trust Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Trust Security. Without limiting the foregoing, a
Securityholder entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such Liquidation Amount. If any dispute shall arise between the
Securityholders and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
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Section 6.9 INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Section 7.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and solely as each such representation or warranty applies to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Property Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States, and
the Delaware Trustee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust Agreement,
and, in the case of the Delaware Trustee, satisfies for the Trust Section 3807
of the Delaware Business Trust Act;
(c) this Trust Agreement has been duly authorized, executed and delivered
by each of the Property Trustee and the Delaware Trustee and constitutes the
respective valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by each of the Property Trustee
and the Delaware Trustee of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Property Trustee or the
Delaware Trustee, as the case may be, and does not require any approval of
stockholders of the Property Trustee or the Delaware Trustee, and such
execution, delivery and performance will not (i) violate the Property Trustee's
or the Delaware Trustee's Charter or By-laws, (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee, as the case may be, is a party or by which it
is bound, or (iii) violate any law,
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governmental rule or regulation of the United States or the State of Delaware,
as the case may be, governing the corporate, banking or trust powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(e) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee, as the case may be, of this Trust Agreement nor
the consummation of any of the transactions by the Property Trustee or the
Delaware Trustee, as the case may be, contemplated herein or therein requires
the consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority or
agency under any existing Federal law governing the corporate, banking or trust
powers of the Property Trustee or the Delaware Trustee, as appropriate in
context, under the laws of the United States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 7.2 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of Delivery on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
Section 8.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, subject to the
Trust Indenture Act.
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Notwithstanding the foregoing, no provision of this Trust Agreement shall
require the Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. To the extent that, at law
or in equity, an Administrative Trustee has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to the Securityholders, such
Administrative Trustee shall not be liable to the Trust or to any Securityholder
for such Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.1(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement and, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own bad faith, negligence or willful
misconduct, except that: (i) the Property Trustee undertakes to perform only
those duties specifically set forth in this Agreement, provided that, it must
exercise the same degree of care as a prudent person would exercise in the
conduct of his or her own affairs; (ii) the Property Trustee shall not be liable
for any error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts; (iii) the Property Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement; (iv) the Property Trustee's sole duty with
respect to the custody, safe keeping and physical preservation of the Debentures
and the Payment Account shall be to deal with such Property in a similar manner
as the Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property Trustee
under this Trust Agreement and the Trust Indenture Act; (v) the Property Trustee
shall not be liable for any interest on any money received by it except as it
may otherwise agree with the Depositor; and money held by the Property Trustee
need not be segregated from other
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funds held by it except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.1 and except to the extent otherwise
required by law; and (vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative Trustees
or the Depositor.
Section 8.2 CERTAIN NOTICES.
Within five (5) Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived. Within five
Business Days after the receipt of notice of the Debenture Issuer's exercise of
its right to defer the payment of interest on the Debentures pursuant to the
Indenture, the Administrative Trustees shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the Securityholders
and the Property Trustee, unless such exercise shall have been revoked.
Section 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor and the Property Trustee shall be fully
protected in acting in accordance with such instructions; provided, however,
that if the Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
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(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall be responsible for its own
negligence or recklessness with respect to selection of any agent or attorney
appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
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(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Debenture Issuer of the proceeds
of the Debentures.
Section 8.5 MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, except as otherwise provided in the definition of "Outstanding"
in Article I and subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6 COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation for
all services rendered by them hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its bad faith, negligence or willful
misconduct; and
(c) to indemnify each of the Trustees or any predecessor Trustee for, and
to hold the Trustees harmless against, any loss, damage, claims, liability,
penalty or expense incurred without bad faith, negligence or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and expenses of
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defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement or the resignation or removal of any Trustee. No Trustee may
claim any lien or charge on any Trust Property as a result of any amount due
pursuant to this Section 8.6.
Section 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder. The Property
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 8.8 CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. Subject to the foregoing, the Depositor and any Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity.
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Any Trustee may engage in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any committee or body of holders of, securities or other
obligations of the Depositor or its Affiliates.
Section 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity. Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co- trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor. Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
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(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
Section 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11. Subject to the
immediately preceding sentence, the Relevant Trustee may resign at any time with
respect to the Trust Securities by giving written notice thereof to the
Depositor. If the instrument of acceptance by the successor Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Depositor, any court of competent jurisdiction
for the appointment of a successor Relevant Trustee with respect to the Trust
Securities. Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). In no event will the Holders of
Preferred Securities have the right to vote to appoint, remove or replace the
Administrative Trustees. An Administrative Trustee may be removed by Act of the
Common Securityholder at any time. If any Trustee shall resign, be removed or
become incapable of acting as Trustee, or if a vacancy shall occur in the office
of any Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees with respect to the Trust Securities and the
Trust, and the retiring Trustee shall comply with the applicable requirements of
Section 8.11. If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of
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continuing to act as the Property Trustee or the Delaware Trustee, as the case
may be, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Preferred Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the Trust,
and such successor Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture Event
of Default shall have occurred and be continuing, the Common Securityholder by
Act of the Common Securityholder delivered to the Administrative Trustee shall
promptly appoint a successor Administrative Trustee or Administrative Trustees
with respect to the Trust Securities and the Trust, and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities. The Depositor shall give notice of each resignation and each removal
of the Property Trustee or the Delaware Trustee and each appointment of a
successor Property Trustee or Delaware Trustee to all Securityholders in the
manner provided in Section 10.8. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee. Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees set forth in Section 8.7).
Section 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee such successor
Trustee so appointed shall execute, acknowledge and deliver to the Trust and to
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring Property Trustee hereunder. In case of the appointment
hereunder of a successor Relevant Trustee with respect to the Trust Securities
and the Trust, the retiring Relevant Trustee and each successor Relevant Trustee
with respect to the Trust Securities shall execute and
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deliver an amendment hereto wherein each successor Relevant Trustee shall accept
such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Trust and
(b) shall add to or change any of the provisions of this Trust Agreement as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being understood that nothing
herein or in such amendment shall constitute such Relevant Trustees co-trustees
of the same trust and that each such Relevant Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Relevant Trustee and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Trust; but, on
request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Relevant Trustee all such rights, powers and trusts referred to
in the first or second preceding paragraph, as the case may be. No successor
Relevant Trustee shall accept its appointment unless at the time of such
acceptance such successor Relevant Trustee shall be qualified and eligible under
this Article.
Section 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee or the Delaware Trustee (or
any Administrative Trustee that is not a natural person) 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 Relevant Trustee
shall be a party, shall be the successor of such Relevant Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
Section 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR, DEBENTURE
ISSUER OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be or become
a creditor of the Depositor, the Debenture Issuer or the Trust (or any other
obligor upon the Debentures or the Trust Securities), the Property Trustee or
the Delaware Trustee, as the case may be, shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
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Act regarding the collection of claims against the Depositor, Debenture Issuer
or Trust (or any such other obligor).
Section 8.14 REPORTS BY PROPERTY TRUSTEE.
(a) Within 60 days after September 15 of each year commencing with the
first September 15 following the first issuance of Preferred Securities pursuant
to this Trust Agreement, the Property Trustee shall transmit to all
Securityholders in accordance with Section 10.8, and to the Depositor, a brief
report dated as of such September 15 with respect to: (i) its eligibility under
Section 8.7 or, in lieu thereof, if to the best of its knowledge it has
continued to be eligible under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of its
obligations under this Trust Agreement during the twelve-month period (or, in
the case of the initial report, the period since the Closing Time) ending with
such September 15 or, if the Property Trustee has not complied in any material
respect with such obligations, a description of such noncompliance; and (iii)
any change in the property and funds in its possession as Property Trustee since
the date of its last report and any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange, interdealer
quotation system or other self-regulatory organization upon which the Trust
Securities are listed or traded, with the Commission and with the Depositor.
Section 8.15 REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
Section 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
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Section 8.17 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Holder of all
of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware Trustee
may be the same person if the Property Trustee meets the applicable
requirements.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul,
dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
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ARTICLE IX.
DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
Section 9.1 DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2054 (the "Expiration Date").
Section 9.2 EARLY DISSOLUTION.
The first to occur of any of the following events is an "Early Termination
Event", upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Debenture Issuer or the Debenture Guarantor;
(b) the written direction to the Property Trustee from the Depositor at any
time (which direction is optional and wholly within the discretion of the
Depositor) to dissolve the Trust and distribute a Like Amount of Debentures to
Securityholders in exchange for the Trust Securities;
(c) the redemption of all of the Trust Securities in connection with the
redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3 TERMINATION.
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following:
(a) the distribution by the Property Trustee to Securityholders upon the
liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all
of the Trust Securities pursuant to Section 4.2, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities;
(b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
Section 9.4 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of
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the Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.4(e).
(b) Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall: (i) state the Liquidation Date; (ii) state that from and
after the Liquidation Date, the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Debentures; and (iii) provide such
information with respect to the mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section 9.4(e) applies, receive a
Liquidation Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(c) Except where Section 9.2(c) or 9.4(e) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(d) Except where Section 9.2(c) or 9.4(e) applies, on and after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to the Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall cause the Debenture Issuer to use its reasonable efforts to
have the Debentures listed or traded on the such stock exchange, interdealer
quotation system and/or other self-regulatory organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities Certificates not
so surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(e) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be wound-up and terminated by
the Property Trustee in such manner as the Property Trustee determines. In such
event, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated
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and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such winding up, the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then, subject
to the next succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if a Debenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities.
Section 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
TRUST.
The Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other entity, except
pursuant to this Section 9.5 or Section 9.4. The Trust may, at the request of
the Depositor, with the consent of only the Administrative Trustees and without
the consent of the Holders of the Preferred Securities, merge with or into,
convert into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debentures,
(iii) the Successor Securities are listed or traded, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities are then listed
or traded, if any, (iv) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Trust, (vii) prior to such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel rendered by independent counsel
experienced in such matters to the effect that (a) such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor (or any permitted successor or
assignee) owns all of the
48
<PAGE>
common securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, convert into,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, convert into, or replace it if such
consolidation, amalgamation, merger, conversion, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States Federal income tax purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be classified for
United States Federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an investment company under the Investment Company;
provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Securityholder.
Any such amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax
49
<PAGE>
purposes or the Trust's exemption from status of an investment company under the
Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date. Notwithstanding
any other provision herein, without the unanimous consent of the
Securityholders, this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the Investment Company Act or fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary, this
Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor, the Property Trustee or the Delaware Trustee
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee, as the case may be.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
Section 10.3 SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.4 GOVERNING LAW.
This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware.
50
<PAGE>
Section 10.5 PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
Section 10.6 SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with a consolidation,
merger or sale involving the Depositor that is permitted under Article Eight of
the Indenture and pursuant to which the assignee agrees in writing to perform
the Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
Section 10.7 HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8 REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to ACE INA Holdings
Inc., c/o ACE USA Inc., Six Concourse Parkway, Suite 2500, Atlanta, Georgia
30328, Attention: ___________, facsimile no.: _______________. Any notice to
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
given in writing addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee, to The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: _______________; (b) with respect to the Delaware Trustee, to Bank
One Delaware, Inc., Three Christina Center, 201 North Walnut Street, Wilmington,
Delaware 19801, Attention: ______________________ ; and (c) with respect to the
Administrative Trustees, to them at [c/o ACE USA Inc., Six Concourse Parkway,
Suite 2500, Atlanta, Georgia 30328], marked
51
<PAGE>
"Attention Administrative Trustees of ACE Capital Trust III." Such notice,
demand or other communication to or upon the Trust or the Property Trustee shall
be deemed to have been sufficiently given or made only upon actual receipt of
the writing by the Trust or the Property Trustee.
Section 10.9 AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been dissolved in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
52
<PAGE>
Section 10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
ACE INA HOLDINGS INC., as Depositor
By:
-------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as Property
Trustee
By:
-------------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., as Delaware Trustee
By:
-------------------------------------------
Name:
Title:
-----------------------------------------------
Robert A. Blee,
as Administrative Trustee.
-----------------------------------------------
Christopher Z. Marshall,
as Administrative Trustee
53
<PAGE>
EXHIBIT A-1
CERTIFICATE OF TRUST
OF
ACE CAPITAL TRUST III
This Certificate of Trust of ACE Capital Trust III (the "Trust"), dated as
of May 19, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del.C. ss. 3801. et seq.)
1. Name. The name of the business trust formed hereby is ACE Capital Trust
III.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware is Bank One
Delaware, Inc., Three Christina Centre, 201 North Walnut Street, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as trustee
of the trust
By:
-------------------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee of the
Trust
By:
-------------------------------------------------
Name:
Title:
----------------------------------------------------
ROBERT A. BLEE, not in his individual capacity
but solely as trustee of the Trust
A-1-1
<PAGE>
Exhibit A-2
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
FIRST AMENDMENT TO THE
TRUST AGREEMENT OF
ACE CAPITAL TRUST III
This Assignment and Assumption Agreement and First Amendment to the Trust
Agreement of ACE Capital Trust III (the "Trust"), dated as of __________ ___1999
(this "Assignment and Amendment Agreement"), is made and entered into by and
among ACE Limited, a Cayman Islands company limited by shares, as the original
depositor (the "Original Depositor"), ACE INA Holdings Inc., a Delaware
corporation, as the substitute depositor (the "Substitute Depositor"), The First
National Bank of Chicago, a national banking association, as property trustee
(the "Property Trustee"), Bank One Delaware, Inc., a Delaware corporation, as
trustee (the "Delaware Trustee"), and Robert A. Blee, an individual, as trustee
(the "Administrative Trustee") (the Property Trustee, the Delaware Trustee and
the Administrative Trustee being hereinafter collectively referred to as the
"Trustees").
WITNESSETH
WHEREAS, the Trust is a Delaware business trust that was created under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq.
pursuant to (i) the Trust Agreement of the Trust, dated as of May 19, 1999 (the
"Trust Agreement"), and (ii) the Certificate of the Trust of the Trust, dated as
of May 19, 1999, as filed with the office of the Secretary of State of the State
of Delaware on May 19, 1999;
WHEREAS, the Original Depositor, as the depositor under the Trust
Agreement, desires to assign, transfer and convey all of its right, title and
interest in the Trust (the "Depositor's Interest") to the Substitute Depositor,
and the Original Depositor desires to cease to be the depositor of the Trust;
WHEREAS, the Substitute Depositor desires to acquire the Depositor's
Interest currently held by the Original Depositor, and the Substitute Depositor
desires to become the depositor of the Trust; and
WHEREAS, the undersigned, being the Original Depositor, the Substitute
Depositor and all the Trustees of the Trust, to accomplish the foregoing, desire
to amend the Trust Agreement in the manner set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
A-2-1
<PAGE>
1. Assignment. Notwithstanding any provision in the Trust Agreement to the
contrary, for value received, the receipt and sufficiency of which are hereby
acknowledged, upon the execution of this Assignment and Amendment Agreement by
the parties hereto, the Original Depositor does hereby assign, transfer and
convey the Depositor's Interest to the Substitute Depositor.
2. Substitution. Notwithstanding any provision in the Trust Agreement to
the contrary, contemporaneously with the assignment described in Section 1 of
this Assignment and Amendment Agreement, the Substitute Depositor shall become
the depositor of the Trust and shall have all rights, powers and obligations of
the Depositor (as such term is used in the Trust Agreement) under the Trust
Agreement.
3. Cessation. Notwithstanding any provision in the Trust Agreement to the
contrary, immediately following the Substitute Depositor becoming the depositor
of the Trust, the Original Depositor shall cease to be the depositor of the
Trust, and shall thereupon cease to have any right, obligation or power as the
depositor of the Trust.
4. Continuation of the Trust. The parties hereto agree that (i) the
assignment of the Depositor's Interest, the Substitute Depositor becoming the
depositor of the Trust and the Original Depositor's ceasing to be the depositor
of the Trust shall not dissolve the Trust and (ii) the business of the Trust
shall continue without dissolution.
5. Successors and Assigns. This Assignment and Amendment Agreement shall be
binding upon, and shall enure to the benefit of, the parties hereto and their
respective successors and assigns.
6. Full Force and Effect. Except to the extent modified hereby, the Trust
Agreement shall remain in full force and effect.
7. Counterparts. This Assignment and Amendment Agreement may be executed in
counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all such parties are not signatories to
the original or same counterpart.
8. Governing Law. This Assignment and Amendment Agreement shall be
interpreted in accordance with the laws of the State of Delaware (without regard
to conflict of laws principles), all rights and remedies being governed by such
laws.
9. Effectiveness of Amendment. This Assignment and Amendment Agreement
shall become a legally effective and binding instrument as of the date hereof.
[SIGNATURE PAGES FOLLOW]
A-2-2
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
Amendment Agreement as of the day and year first above written.
ACE LIMITED,
as Original Depositor
By:
---------------------------------------
Name:
Title:
ACE INA HOLDINGS INC.
as Substitute Depositor
By:
---------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, not in its individual capacity but
solely as trustee of the Trust
By:
---------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., not in its
individual capacity but solely as trustee of
the Trust
By:
---------------------------------------
Name:
Title:
-------------------------------------------
ROBERT A. BLEE, not in his individual
capacity but solely as trustee of the Trust
A-2-3
<PAGE>
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: John C. Drennan
General Counsel's Officer
Re: ACE Capital Trust III _____% Trust Originated Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
issuance and deposit with The Depository Trust Company ("DTC") of the ACE
Capital Trust III ____% Trust Originated Preferred Securities (the "Preferred
Securities"), of ACE Capital Trust III, a Delaware business trust (the
"Issuer"), governed by an Amended and Restated Trust Agreement among ACE INA
Holdings Inc. ("ACE INA") and The First National Bank of Chicago, as Property
Trustee, Bank One Delaware, Inc., as Delaware Trustee, and the Administrative
Trustees named therein. The payment of distributions on the Preferred
Securities, and payments due upon liquidation of Issuer or redemption of the
Preferred Securities, to the extent the Issuer has funds available for the
payment thereof are guaranteed by ACE Limited, a Cayman Islands company and the
parent of ACE INA ("ACE"), to the extent set forth in a Guarantee Agreement
dated ______________, ____ by ACE with respect to the Preferred Securities. ACE
INA, ACE and the Issuer propose to sell the Preferred Securities to certain
Underwriters (the "Underwriters") pursuant to an Underwriting Agreement dated
__________, 1999 by and among the Underwriters, the Issuer, ACE INA and ACE
dated _____, ____, and the Underwriters wish to take delivery of the Preferred
Securities through DTC. The First National Bank of Chicago is acting as transfer
agent and registrar with respect to the Preferred Securities (the "Transfer
Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for deposit at
DTC, and to act in accordance with DTC's rules with respect to the Preferred
Securities, the Issuer, the Transfer Agent and Registrar and DTC agree among
each other as follows:
(1) Prior to the closing of the sale of the Preferred Securities to the
Underwrites, which is expected to occur on or about _________________, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of Preferred
Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer,
B-1
<PAGE>
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
(2) The Amended and Restated Trust Agreement of the Issuer provides for the
voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
(3) In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
(4) In the event of distribution on, or an offering or issuance of rights
with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
B-2
<PAGE>
The Issuer or the Transfer Agent and Registrar shall confirm DTC's receipt
of such telecopy by telephoning the Dividend Department at (212) 709-1270.
(5) In the event of a redemption by the Issuer of the Preferred Securities,
notice specifying the terms of the redemption and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC
not less than 30 calendar days prior to such event by a secure means in the
manner set forth in paragraph 4. Such redemption notice shall be sent to DTC's
Call Notification Department at (516) 227-4164 or (516) 227-4190, and receipt of
such notice shall be confirmed by telephoning (516) 227-4070. Notice by mail or
by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719.
(6) In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
(7) All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is ACE
Capital Trust III _____% Trust Originated Preferred Securities.
(8) Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
B-3
<PAGE>
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695.
(9) DTC may be prior written notice direct the Issuer and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
(10) In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
(11) DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer of the Transfer
Agent and Registrar.
(12) In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
B-4
<PAGE>
(13) This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of ACE Capital Trust III.
Very truly yours,
ACE CAPITAL TRUST III
(As Issuer)
[Name of Trustee]
By:
------------------------------
Administrative Trustee
By:
------------------------------
Name:
Title:
---------------------------------
(As Transfer Agent and Registrar)
By:
------------------------------
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
------------------------------
Authorized Officer
B-5
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number Number of Common Securities
C-__ ______
Certificate Evidencing Common Securities
of
ACE CAPITAL TRUST III
_____% Common Securities
(liquidation amount $_____ per Common Security)
ACE Capital Trust III, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that ACE INA Holdings Inc.
(the "Holder") is the registered owner of _________________________ (________)
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the _____% Common Securities (liquidation
amount $______ per Common Security) (the "Common Securities"). In accordance
with Section 5.10 of the Trust Agreement (as defined below) the Common
Securities are not transferable and any attempted transfer hereof shall be void.
The designations, and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of __________, 1999, as the same may be amended from time
to time (the "Trust Agreement"), including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
C-1
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____ day of __________, 1999.
ACE CAPITAL TRUST III
By:
------------------------------
Name:
Administrative Trustee
C-2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________, 1999, between ACE Limited, a Cayman
Islands Company ("ACE"), and ACE Capital Trust III, a Delaware business trust
(the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from ACE INA Holdings Inc., a Delaware
corporation and a wholly owned subsidiary of ACE ("ACE INA"), and to issue and
sell _____% Trust Originated Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust dated as of
__________, 1999, as the same may be amended from time to time (the "Trust
Agreement');
WHEREAS, ACE INA will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
WHEREAS, ACE will guarantee the obligations of ACE INA under the Debentures
and has agreed to guarantee certain expenses and liabilities of the Trust as
provided herein;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase ACE hereby agrees shall benefit ACE and
which purchase ACE acknowledges will be made in reliance upon the execution and
delivery of this Agreement, ACE and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY ACE.
Subject to the terms and conditions hereof, ACE hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date one which there are no
Beneficiaries remaining, provided, however, that this Agreement shall
D-1
<PAGE>
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof betweeen ACE, in its capacity as
guarantor with respect to the Preferred Securities, and The First National Bank
of Chicago, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.3 WAIVER OF NOTICE.
ACE hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and ACE hereby waives presentment,
demand for payment, protest, notices of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of ACE under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, ACE with respect to the happening of any of the foregoing.
SECTION 1.5 ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against ACE and ACE
waives any right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against ACE.
SECTION 1.6. SUBROGATION.
ACE shall be subrogated to all (if any) rights of the Trust in respect of
any amounts paid to the Beneficiaries by ACE under this Agreement; provided,
however, that ACE shall not (except to
D-2
<PAGE>
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II.
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of ACE and
shall inure to the benefit of the Beneficiaries.
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred Securities are
outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Preferred Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
ACE Capital Trust III
c/o ACE USA Inc.
Six Concourse Parkway
Suite 2500
Atlanta, Georgia 30328
Facsimile:
Attention:
ACE Limited.
The ACE Building
30 Woodbourne Avenue
Hamilton 08
Bermuda
Facsimile:
Attention:
SECTION 2.4 GOVERNING LAW.
D-3
<PAGE>
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
THIS AGREEMENT is executed as of the day and year first above written.
ACE LIMITED
By:
-----------------------------
Name:
Title:
ACE CAPITAL TRUST III
By:
-----------------------------
Name:
Title:
D-4
<PAGE>
EXHIBIT E
This Preferred Security is a Global Certificate within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to ACE
Capital Trust III or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number of Preferred Securities
P-___ __________
Certificate Evidencing Preferred Securities
Of
ACE CAPITAL TRUST III
_____% Trust Originated Preferred Securities
(liquidation amount $__________ per Preferred Security)
ACE Capital Trust III, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of __________ (__________) preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the ACE Capital Trust III _____% Trust
Originated Preferred Securities (Liquidation Amount $_____ per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and
E-1
<PAGE>
provisions of the Amended and Restated Trust Agreement of the Trust, dated as of
__________, 1999, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by ACE Limited, a Cayman Islands company, and The First
National Bank of Chicago, as guarantee trustee, dated as of __________, 1999
(the "Guarantee"), to the extent provided therein. The Trust will furnish a copy
of the Trust Agreement and the Guarantee to the Holder without charge upon
written recruits to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____th day of __________, 1999.
ACE CAPITAL TRUST III
By:
-----------------------------
Name:
Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
E-2
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: __________
Signature:
----------------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
SIGNATURE(S) GUARANTEED:
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATION AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
E-3
<PAGE>
Exhibit 4.18
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT
BETWEEN
ACE LIMITED
(AS GUARANTOR)
AND
THE FIRST NATIONAL BANK OF CHICAGO
(AS TRUSTEE)
DATED AS OF
_____________, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.......................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application..................................5
SECTION 2.2 List of Holders...................................................5
SECTION 2.3 Reports by the Guarantee Trustee..................................5
SECTION 2.4 Periodic Reports to Guarantee Trustee............................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent..................6
SECTION 2.6 Events of Default; Waiver.........................................5
SECTION 2.7 Event of Default; Notice..........................................6
SECTION 2.8 Conflicting Interests.............................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee........................7
SECTION 3.2 Certain Rights of the Guarantee Trustee...........................8
SECTION 3.3 Indemnity........................................................10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility...................................10
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees.......10
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee........................................................11
SECTION 5.2 Waiver of Notice and Demand......................................11
SECTION 5.3 Obligations Not Affected.........................................11
SECTION 5.4 Rights of Holders................................................12
SECTION 5.5 Guarantee of Payment.............................................13
SECTION 5.6 Subrogation......................................................13
SECTION 5.7 Independent Obligations..........................................13
SECTION 5.8 Net Payments.....................................................13
i
<PAGE>
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions.......................................14
SECTION 6.2 Ranking..........................................................15
SECTION 6.3 Pari Passu Guarantees............................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination......................................................16
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns...........................................16
SECTION 8.2 Amendments.......................................................16
SECTION 8.3 Notices..........................................................16
SECTION 8.4 Benefit..........................................................17
SECTION 8.5 Governing Law....................................................15
SECTION 8.6 Interpretation...................................................18
SECTION 8.7 Submission to Jurisdiction.......................................18
SECTION 8.8 Judgment Currency................................................19
ii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _______, 1999, is executed and
delivered by ACE Limited, a Cayman Islands company (the "Guarantor"), having its
principal executive offices at The ACE Building, 30 Woodbourne Avenue, Hamilton
HM 08 Bermuda, and The First National Bank of Chicago, a national banking
association, having a corporate trust office at One First National Plaza, Suite
0126, Chicago, Illinois 60670-0126, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of ACE Capital Trust I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
________, 1999, among the Trustees named therein, ACE INA Holdings Inc., a
Delaware corporation and a wholly-owned subsidiary of the Guarantor ("ACE INA"),
as depositor (in such capacity, the "Depositor"), and the Holders from time to
time of undivided beneficial ownership interests in the assets of the Issuer
(the "Trust Agreement"), the Issuer is issuing up to $_______ ($_______ if the
Underwriters' over-allotment option pursuant to the Underwriting Agreement and
the Pricing Agreement is exercised in full), aggregate liquidation preference of
its __% Trust Originated Preferred Securities (liquidation preference $__ per
preferred security) (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), will be used to purchase the Debentures
(as defined herein) of ACE INA (in its capacity as issuer of the Debentures, the
"Debenture Issuer"), which will be deposited with The First National Bank of
Chicago, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used,
<PAGE>
but not otherwise defined herein shall have the meanings assigned to such terms
in the Trust Agreement as in effect on the date hereof.
"Additional Amounts" means any additional amounts which are required hereby
or by the terms of the Preferred Securities, under circumstances specified
herein or therein, to be paid by the Guarantor in respect of certain taxes,
assessments or other governmental charges imposed on Holders specified therein
and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purpose of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capitalized Lease Obligations" 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.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Debenture Guarantee" means the full and unconditional payment guarantee
and indemnity of the Debenture Guarantor provided for in the Indenture with
respect to the Debentures.
"Debenture Guarantor" means ACE Limited, in its capacity as guarantor of
the Debentures under the Indenture.
"Debentures" means the series of subordinated debt securities of the
Debenture Issuer designated the __% Junior Subordinated Debentures due _______,
_____ held by the Property Trustee.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) that are required to be paid on such Preferred
Securities, to the extent the Issuer shall have funds on hand available therefor
at such time, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price") with respect to
Preferred Securities called for redemption by the Issuer to the extent the
Issuer shall have funds on hand available therefor at such time and (iii) upon a
voluntary or involuntary dissolution,
2
<PAGE>
winding-up or liquidation of the Issuer, unless Debentures are distributed to
the Holders, the lesser of (a) the aggregate of the liquidation preference of
$__ per Preferred Security plus accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Issuer shall have
funds on hand available to make such payment at such time and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Depositor, the Guarantee Trustee or any Affiliate of
the Guarantor, the Depositor, or the Guarantee Trustee.
"Indebtedness" means, with respect to any Person, (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; and (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 (vii) any
amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi)
above.
"Indenture" means the Subordinated Indenture dated as of _______, 1999
among the Debenture Issuer, the Debenture Guarantor and The First National Bank
of Chicago, as trustee, and any indenture supplemental thereto pursuant to which
the Debentures and the Debenture Guarantee are to be issued to the Property
Trustee of the Issuer.
"List of Holders" has the meaning specified in Section 2.2(a).
3
<PAGE>
"Majority in liquidation preference of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all
then outstanding Preferred Securities issued by the Issuer.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board of Directors, a Vice Chairman, the
President, any Vice President, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee shall
include:
(a) a statement that the officer signing the Officer's Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer within the
Corporate Trust Department 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 that officer's knowledge of and familiarity with
the particular subject.
"Senior Indebtedness" means all Indebtedness of the Guarantor (including
its Indebtedness, as Debenture Guarantor, under the Indenture) outstanding at
any time, except (a) the Indebtedness under this Guarantee Agreement, (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 this Guarantee Agreement or to other Indebtedness of the Guarantor which is
subordinated to or pari passu with this Guarantee Agreement, (c) Indebtedness of
the Guarantor to an Affiliate of the Guarantor, (d) interest accruing after the
filing of a petition initiating any proceeding referred to in Section 5.1(7) and
5.1(8) of the Indenture unless such interest is an allowed claim enforceable
against the Guarantor in a proceeding under federal or state bankruptcy laws,
(e) trade accounts payable and (f) similar Guarantee Agreements issued by the
Guarantor on behalf of holders of preferred securities of any other ACE Capital
Trust or any trust, partnership or other entity affiliated with the Guarantor
4
<PAGE>
which is a financing vehicle of the Guarantor or any Affiliate of the Guarantor
in connection with the issuance by such entity of preferred securities or other
securities which are similar to preferred securities that are guaranteed by the
Guarantor pursuant to an instrument that ranks pari passu with or junior in
right of payment to this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 List of Holders
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, not later than May 1 and November 1 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders ("List of Holders") as of the applicable date, and
(ii) at such other times as the Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
Within 60 days after September 15 of each year commencing with September
15, ____, the Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
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SECTION 2.4 Periodic Reports to the Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders, such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation preference of the Preferred
Securities may, by vote, on behalf of all Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default known to the Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured or waived before the giving of such notice,
provided, except in the case of a default in the payment of a Guarantee Payment,
the Guarantee Trustee shall be protected in withholding such notice if and so
long as a the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Guarantee Trustee charged with the
administration of the Trust Agreement shall have obtained written notice, of
such Event of Default.
SECTION 2.8 Conflicting Interests
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its negligent
failure to act or its own bad faith or willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement, and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee 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 Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to
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determine whether or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
preference of the Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of the Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely upon, and shall be fully protected
in acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with competent legal counsel,
and the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion.
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Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(v) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
(ix) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation preference of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No
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permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.
SECTION 3.3 Indemnity
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on the part of the Guarantee Trustee, arising
out of or in connection with the acceptance or administration of this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Agreement as a result of any amount due to it
under this Guarantee Agreement.
The provisions of this Section 3.3 shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor or the Depositor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital of at least 50 million U.S.
dollars ($50,000,000), and shall be a corporation meeting the requirements
of Section 310(c) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
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(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer, through the Debenture Issuer, to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or so provided by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation preference of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may, to the extent permitted by law,
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives
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any right or remedy to require that any action on this Guarantee Agreement be
brought first against the Issuer or any other Person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Guarantee creates a guarantee of payment and not of collection. This
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the Issuer)
or upon distribution of Debentures to Holders as provided in the Trust
Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
SECTION 5.8 Net Payments
All Guarantee Payments required to be made hereunder shall be made by the
Guarantor without withholding or deduction at source for, or on account of, any
present or future taxes, fees, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the Cayman Islands or
Bermuda (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 Guarantor shall, subject to
certain limitations and exceptions set forth below, pay to the Holder of any
Preferred Security such Additional Amounts as may be necessary so that every
Guarantee Payment made to such Holder, after such withholding or deduction,
shall not be less than the amount provided for in this Guarantee Agreement to be
then due and payable; provided,
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however, that the Guarantor shall not be required to make payment of such
Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever
nature which would not have been imposed but for the fact that such Holder: (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 Preferred Security; (B)
presented such Preferred Security for payment in the relevant taxing
jurisdiction or any political subdivision thereof, unless such Preferred
Security could not have been presented for payment elsewhere; or (C) presented
such Preferred Security more than thirty (30) days after the date on which the
payment in respect of such Preferred Security first became due and payable 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 Preferred
Security for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, 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
Preferred Security to comply with any reasonable request by the Guarantor or the
Trust 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; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any Guarantee Payment to
any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of the related Preferred 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 such Preferred Security.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
The Guarantor hereby covenants and agrees that, so long as any Preferred
Securities remain outstanding, it will not, and will not permit any of its
Subsidiaries (including the Debenture Issuer) to, (a) declare or pay any
dividends or distributions on, or redeem, purchase,
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acquire or make a liquidation payment with respect to, any of the outstanding
capital stock of the Debenture Issuer or the Guarantor, as the case may be, or
(b) make any payment of principal of, interest or premium, if any, on or repay,
repurchase or redeem any debt security of the Debenture Issuer or the Guarantor,
as the case may be, that ranks junior in interest to the Debentures or the
guarantee in respect thereof, as the case may be, or make any guarantee payments
with respect to any guarantee by the Debenture Issuer or the Guarantor, as the
case may be, of the debt securities of any Subsidiary of the Debenture Issuer or
the Guarantor, as the case may be, if such guarantee ranks junior in interest to
the Debentures or the guarantee in respect thereof, as the case may be (other
than (i) dividends or distributions on the Capital Stock (as defined in the
Indenture) of the Debenture Issuer paid or made to the Guarantor and dividends
or distributions in Common Stock (as defined in the Indenture) of the Debenture
Issuer or the Guarantor, as the case may be, (ii) redemptions or purchases of
any rights outstanding under a shareholder rights plan of the Debenture Issuer
or the Guarantor, as the case may be, 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 Debenture
Issuer or the Guarantor, as the case may be, for its respective directors,
officers or employees) if at such time (1) there shall have occurred any event
of which the Debenture Issuer or the Guarantor, as the case may be, has actual
knowledge that (A) with the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Indenture and (B) in respect of which
the Debenture Issuer or the Guarantor, as the case may be, shall not have taken
reasonable steps to cure, (2) the Guarantor shall be in default with respect to
its payment of any obligations under this Guarantee Agreement or (3) the
Debenture Issuer shall have given notice of its election to begin an Extension
Period (as defined in the Indenture) with respect to the Debentures as provided
in the Indenture and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
SECTION 6.2 Ranking
This Guarantee will constitute an unsecured obligation of the Guarantor and
will rank subordinate and junior in right of payment to all Senior Indebtedness
of the Guarantor.
SECTION 6.3 Pari Passu Guarantees
This Guarantee Agreement shall rank pari passu with any similar Guarantee
Agreements issued by the Guarantor on behalf of holders of preferred securities
of any other ACE Capital Trust or any trust, partnership or other entity
affiliated with the Guarantor which is a financing vehicle of the Guarantor or
any Affiliate of the Guarantor in connection with the issuance by such entity of
preferred securities or other securities which are similar to preferred
securities that are guaranteed by the Guarantor pursuant to an instrument that
ranks pari passu with or junior in right of payment to this Guarantee Agreement.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Guarantee shall terminate and be of no further force and effect upon
(i) full payment of the Redemption Price of all Preferred Securities, (ii) the
distribution of the Debentures to all Holders in exchange for the Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to the Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger,
or sale involving the Guarantor that is permitted under Article 8 of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 8.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders in any material respect (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of at least a Majority in liquidation preference of the Preferred
Securities. The provisions of Article VI of the Trust Agreement concerning
meetings of Holders apply to the giving of such approval.
SECTION 8.3 Notices
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below (or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders):
The First National Bank of Chicago
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One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: ______________
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the
Holders):
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton, HM 08, Bermuda
Attn: General Counsel and Secretary
(c) If given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
ACE Capital Trust I
c/o ACE USA, Inc.
Six Concourse Parkway
Suite 2500
Atlanta, Georgia 30328
Attn: General Counsel and Secretary
with a copy to:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: ______________
(d) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.4 Benefit
This Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
17
<PAGE>
SECTION 8.5 Governing Law
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND PERFORMED IN THAT STATE.
SECTION 8.6 Interpretation
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement, but not defined in
the preamble hereto have the respective meanings assigned to them in this
Section 1.1 or in the Trust Agreement, as the case may be;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement, unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement, unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
(g) the masculine, feminine, or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.7 Submission to Jurisdiction
The Guarantor agrees that any judicial proceedings instituted in relation
to any matter arising under this Guarantee Agreement may be brought in any
United States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York to the extent that such court has
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally
and unconditionally, the jurisdiction of the aforesaid courts, acknowledges
their competence and irrevocably agrees to be bound by any judgement rendered in
such proceeding. The Guarantor also irrevocably and unconditionally waives for
the benefit of the Guarantee Trustee and the Holders any immunity from
jurisdiction and any immunity from legal process (whether through service or
notice, attachment prior to judgement, attachment in the aid of execution,
execution or otherwise) in respect of this Guarantee Agreement. The Guarantor
hereby irrevocably designates and appoints for the benefit of the Guarantee
Trustee and the Holders for the term of this Guarantee Agreement ACE USA, Inc.
1133 Avenue of the Americas, 32nd Floor, New York, New York 10036, as its agent
to receive on its behalf service of all process (with a copy of all
18
<PAGE>
such service of process to be delivered to Peter N. Mear, General Counsel and
Secretary, ACE Limited, The ACE Building, 30 Woodbourne Avenue, Hamilton, HM 08,
Bermuda) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by the
Guarantor to be effective and binding service on it in every respect whether or
not the Guarantor shall then be doing or shall have at any time done business in
New York. Such appointment shall be irrevocable so long as any of the Securities
or the obligations of the Guarantor hereunder remain outstanding, or until the
appointment of a successor by the Guarantor and such successor's acceptance of
such appointment. Upon such acceptance, the Guarantor shall notify the Guarantee
Trustee of the name and address of such successor. The Guarantor further agrees
for the benefit of the Guarantee Trustee and the Holders to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
said Ace USA, Inc. in full force and effect so long as any of the Preferred
Securities or the obligations of the Guarantor hereunder shall be outstanding.
The Guarantee Trustee shall not be obligated and shall have no responsibility
with respect to any failure by the Guarantor to take any such action. Nothing
herein shall affect the right to serve process in any other manner permitted by
any law or limit the right of the Guarantee Trustee or any Holder to institute
proceedings against the Guarantor in the courts of any other jurisdiction or
jurisdictions.
SECTION 8.8 Judgment Currency
The Guarantor 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 any Guarantee Payment
(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 Guarantee 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
Guarantee Agreement 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, 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 Guarantee Agreement. 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.
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<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
ACE LIMITED.,
as Guarantor
By:
--------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By:
--------------------------------
Name:
Title:
20
<PAGE>
Exhibit 4.19
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT
BETWEEN
ACE LIMITED
(AS GUARANTOR)
AND
THE FIRST NATIONAL BANK OF CHICAGO
(AS TRUSTEE)
DATED AS OF
_____________, 1999
----------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions......................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.................................5
SECTION 2.2 List of Holders..................................................5
SECTION 2.3 Reports by the Guarantee Trustee.................................5
SECTION 2.4 Periodic Reports to Guarantee Trustee...........................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................6
SECTION 2.6 Events of Default; Waiver........................................6
SECTION 2.7 Event of Default; Notice.........................................6
SECTION 2.8 Conflicting Interests............................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.......................7
SECTION 3.2 Certain Rights of the Guarantee Trustee..........................8
SECTION 3.3 Indemnity.......................................................10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility..................................10
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustees.. .........................................10
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.......................................................11
SECTION 5.2 Waiver of Notice and Demand.....................................11
SECTION 5.3 Obligations Not Affected........................................11
SECTION 5.4 Rights of Holders...............................................12
SECTION 5.5 Guarantee of Payment............................................13
SECTION 5.6 Subrogation.....................................................13
SECTION 5.7 Independent Obligations.........................................13
SECTION 5.8 Net Payments....................................................13
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ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions......................................14
SECTION 6.2 Ranking.........................................................15
SECTION 6.3 Pari Passu Guarantees...........................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.....................................................16
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns..........................................16
SECTION 8.2 Amendments......................................................16
SECTION 8.3 Notices.........................................................16
SECTION 8.4 Benefit.........................................................17
SECTION 8.5 Governing Law...................................................18
SECTION 8.6 Interpretation..................................................18
SECTION 8.7 Submission to Jurisdiction......................................18
SECTION 8.8 Judgment Currency...............................................19
ii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _______, 1999, is executed and
delivered by ACE Limited, a Cayman Islands company (the "Guarantor"), having its
principal executive offices at The ACE Building, 30 Woodbourne Avenue, Hamilton
HM 08 Bermuda, and The First National Bank of Chicago, a national banking
association, having a corporate trust office at One First National Plaza, Suite
0126, Chicago, Illinois 60670-0126, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of ACE Capital Trust II, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
________, 1999, among the Trustees named therein, ACE INA Holdings Inc., a
Delaware corporation and a wholly-owned subsidiary of the Guarantor ("ACE INA"),
as depositor (in such capacity, the "Depositor"), and the Holders from time to
time of undivided beneficial ownership interests in the assets of the Issuer
(the "Trust Agreement"), the Issuer is issuing up to $_______ ($_______ if the
Underwriters' over-allotment option pursuant to the Underwriting Agreement and
the Pricing Agreement is exercised in full), aggregate liquidation preference of
its __% Trust Originated Preferred Securities (liquidation preference $__ per
preferred security) (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), will be used to purchase the Debentures
(as defined herein) of ACE INA (in its capacity as issuer of the Debentures, the
"Debenture Issuer"), which will be deposited with The First National Bank of
Chicago, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used,
<PAGE>
but not otherwise defined herein shall have the meanings assigned to such terms
in the Trust Agreement as in effect on the date hereof.
"Additional Amounts" means any additional amounts which are required hereby
or by the terms of the Preferred Securities, under circumstances specified
herein or therein, to be paid by the Guarantor in respect of certain taxes,
assessments or other governmental charges imposed on Holders specified therein
and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purpose of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capitalized Lease Obligations" 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.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Debenture Guarantee" means the full and unconditional payment guarantee
and indemnity of the Debenture Guarantor provided for in the Indenture with
respect to the Debentures.
"Debenture Guarantor" means ACE Limited, in its capacity as guarantor of
the Debentures under the Indenture.
"Debentures" means the series of subordinated debt securities of the
Debenture Issuer designated the __% Junior Subordinated Debentures due _______,
_____ held by the Property Trustee.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) that are required to be paid on such Preferred
Securities, to the extent the Issuer shall have funds on hand available therefor
at such time, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price") with respect to
Preferred Securities called for redemption by the Issuer to the extent the
Issuer shall have funds on hand available therefor at such time and (iii) upon a
voluntary or involuntary dissolution,
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winding-up or liquidation of the Issuer, unless Debentures are distributed to
the Holders, the lesser of (a) the aggregate of the liquidation preference of
$__ per Preferred Security plus accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Issuer shall have
funds on hand available to make such payment at such time and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Depositor, the Guarantee Trustee or any Affiliate of
the Guarantor, the Depositor, or the Guarantee Trustee.
"Indebtedness" means, with respect to any Person, (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; and (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 (vii) any
amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi)
above.
"Indenture" means the Subordinated Indenture dated as of _______, 1999
among the Debenture Issuer, the Debenture Guarantor and The First National Bank
of Chicago, as trustee, and any indenture supplemental thereto pursuant to which
the Debentures and the Debenture Guarantee are to be issued to the Property
Trustee of the Issuer.
"List of Holders" has the meaning specified in Section 2.2(a).
3
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"Majority in liquidation preference of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all
then outstanding Preferred Securities issued by the Issuer.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board of Directors, a Vice Chairman, the
President, any Vice President, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee shall
include:
(a) a statement that the officer signing the Officer's Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer within the
Corporate Trust Department 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 that officer's knowledge of and familiarity with
the particular subject.
"Senior Indebtedness" means all Indebtedness of the Guarantor (including
its Indebtedness, as Debenture Guarantor, under the Indenture) outstanding at
any time, except (a) the Indebtedness under this Guarantee Agreement, (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 this Guarantee Agreement or to other Indebtedness of the Guarantor which is
subordinated to or pari passu with this Guarantee Agreement, (c) Indebtedness of
the Guarantor to an Affiliate of the Guarantor, (d) interest accruing after the
filing of a petition initiating any proceeding referred to in Section 5.1(7) and
5.1(8) of the Indenture unless such interest is an allowed claim enforceable
against the Guarantor in a proceeding under federal or state bankruptcy laws,
(e) trade accounts payable and (f) similar Guarantee Agreements issued by the
Guarantor on behalf of holders of preferred securities of any other ACE Capital
Trust or any trust, partnership or other entity affiliated with the Guarantor
4
<PAGE>
which is a financing vehicle of the Guarantor or any Affiliate of the Guarantor
in connection with the issuance by such entity of preferred securities or other
securities which are similar to preferred securities that are guaranteed by the
Guarantor pursuant to an instrument that ranks pari passu with or junior in
right of payment to this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 List of Holders
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, not later than May 1 and November 1 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders ("List of Holders") as of the applicable date, and
(ii) at such other times as the Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
Within 60 days after September 15 of each year commencing with September
15, ____, the Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
5
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SECTION 2.4 Periodic Reports to the Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders, such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation preference of the Preferred
Securities may, by vote, on behalf of all Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default known to the Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured or waived before the giving of such notice,
provided, except in the case of a default in the payment of a Guarantee Payment,
the Guarantee Trustee shall be protected in withholding such notice if and so
long as a the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Guarantee Trustee charged with the
administration of the Trust Agreement shall have obtained written notice, of
such Event of Default.
SECTION 2.8 Conflicting Interests
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
6
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its negligent
failure to act or its own bad faith or willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement, and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee 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 Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to
7
<PAGE>
determine whether or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
preference of the Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of the Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely upon, and shall be fully protected
in acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with competent legal counsel,
and the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion.
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Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(v) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
(ix) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation preference of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No
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permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.
SECTION 3.3 Indemnity
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on the part of the Guarantee Trustee, arising
out of or in connection with the acceptance or administration of this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Agreement as a result of any amount due to it
under this Guarantee Agreement.
The provisions of this Section 3.3 shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor or the Depositor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital of at least 50 million U.S.
dollars ($50,000,000), and shall be a corporation meeting the requirements
of Section 310(c) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
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(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer, through the Debenture Issuer, to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or so provided by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation preference of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may, to the extent permitted by law,
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives
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any right or remedy to require that any action on this Guarantee Agreement be
brought first against the Issuer or any other Person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Guarantee creates a guarantee of payment and not of collection. This
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the Issuer)
or upon distribution of Debentures to Holders as provided in the Trust
Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
SECTION 5.8 Net Payments
All Guarantee Payments required to be made hereunder shall be made by the
Guarantor without withholding or deduction at source for, or on account of, any
present or future taxes, fees, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the Cayman Islands or
Bermuda (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 Guarantor shall, subject to
certain limitations and exceptions set forth below, pay to the Holder of any
Preferred Security such Additional Amounts as may be necessary so that every
Guarantee Payment made to such Holder, after such withholding or deduction,
shall not be less than the amount provided for in this Guarantee Agreement to be
then due and payable; provided,
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however, that the Guarantor shall not be required to make payment of such
Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever
nature which would not have been imposed but for the fact that such Holder: (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 Preferred Security; (B)
presented such Preferred Security for payment in the relevant taxing
jurisdiction or any political subdivision thereof, unless such Preferred
Security could not have been presented for payment elsewhere; or (C) presented
such Preferred Security more than thirty (30) days after the date on which the
payment in respect of such Preferred Security first became due and payable 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 Preferred
Security for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, 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
Preferred Security to comply with any reasonable request by the Guarantor or the
Trust 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; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any Guarantee Payment to
any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of the related Preferred 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 such Preferred Security.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
The Guarantor hereby covenants and agrees that, so long as any Preferred
Securities remain outstanding, it will not, and will not permit any of its
Subsidiaries (including the Debenture Issuer) to, (a) declare or pay any
dividends or distributions on, or redeem, purchase,
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acquire or make a liquidation payment with respect to, any of the outstanding
capital stock of the Debenture Issuer or the Guarantor, as the case may be, or
(b) make any payment of principal of, interest or premium, if any, on or repay,
repurchase or redeem any debt security of the Debenture Issuer or the Guarantor,
as the case may be, that ranks junior in interest to the Debentures or the
guarantee in respect thereof, as the case may be, or make any guarantee payments
with respect to any guarantee by the Debenture Issuer or the Guarantor, as the
case may be, of the debt securities of any Subsidiary of the Debenture Issuer or
the Guarantor, as the case may be, if such guarantee ranks junior in interest to
the Debentures or the guarantee in respect thereof, as the case may be (other
than (i) dividends or distributions on the Capital Stock (as defined in the
Indenture) of the Debenture Issuer paid or made to the Guarantor and dividends
or distributions in Common Stock (as defined in the Indenture) of the Debenture
Issuer or the Guarantor, as the case may be, (ii) redemptions or purchases of
any rights outstanding under a shareholder rights plan of the Debenture Issuer
or the Guarantor, as the case may be, 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 Debenture
Issuer or the Guarantor, as the case may be, for its respective directors,
officers or employees) if at such time (1) there shall have occurred any event
of which the Debenture Issuer or the Guarantor, as the case may be, has actual
knowledge that (A) with the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Indenture and (B) in respect of which
the Debenture Issuer or the Guarantor, as the case may be, shall not have taken
reasonable steps to cure, (2) the Guarantor shall be in default with respect to
its payment of any obligations under this Guarantee Agreement or (3) the
Debenture Issuer shall have given notice of its election to begin an Extension
Period (as defined in the Indenture) with respect to the Debentures as provided
in the Indenture and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
SECTION 6.2 Ranking
This Guarantee will constitute an unsecured obligation of the Guarantor and
will rank subordinate and junior in right of payment to all Senior Indebtedness
of the Guarantor.
SECTION 6.3 Pari Passu Guarantees
This Guarantee Agreement shall rank pari passu with any similar Guarantee
Agreements issued by the Guarantor on behalf of holders of preferred securities
of any other ACE Capital Trust or any trust, partnership or other entity
affiliated with the Guarantor which is a financing vehicle of the Guarantor or
any Affiliate of the Guarantor in connection with the issuance by such entity of
preferred securities or other securities which are similar to preferred
securities that are guaranteed by the Guarantor pursuant to an instrument that
ranks pari passu with or junior in right of payment to this Guarantee Agreement.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Guarantee shall terminate and be of no further force and effect upon
(i) full payment of the Redemption Price of all Preferred Securities, (ii) the
distribution of the Debentures to all Holders in exchange for the Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to the Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger,
or sale involving the Guarantor that is permitted under Article 8 of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 8.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders in any material respect (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of at least a Majority in liquidation preference of the Preferred
Securities. The provisions of Article VI of the Trust Agreement concerning
meetings of Holders apply to the giving of such approval.
SECTION 8.3 Notices
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below (or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders):
The First National Bank of Chicago
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One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: ______________
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the
Holders):
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton, HM 08, Bermuda
Attn: General Counsel and Secretary
(c) If given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
ACE Capital Trust II
c/o ACE USA, Inc.
Six Concourse Parkway
Suite 2500
Atlanta, Georgia 30328
Attn: General Counsel and Secretary
with a copy to:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: ______________
(d) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.4 Benefit
This Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
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SECTION 8.5 Governing Law
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND PERFORMED IN THAT STATE.
SECTION 8.6 Interpretation
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement, but not defined in
the preamble hereto have the respective meanings assigned to them in this
Section 1.1 or in the Trust Agreement, as the case may be;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement, unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement, unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
(g) the masculine, feminine, or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.7 Submission to Jurisdiction
The Guarantor agrees that any judicial proceedings instituted in relation
to any matter arising under this Guarantee Agreement may be brought in any
United States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York to the extent that such court has
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally
and unconditionally, the jurisdiction of the aforesaid courts, acknowledges
their competence and irrevocably agrees to be bound by any judgement rendered in
such proceeding. The Guarantor also irrevocably and unconditionally waives for
the benefit of the Guarantee Trustee and the Holders any immunity from
jurisdiction and any immunity from legal process (whether through service or
notice, attachment prior to judgement, attachment in the aid of execution,
execution or otherwise) in respect of this Guarantee Agreement. The Guarantor
hereby irrevocably designates and appoints for the benefit of the Guarantee
Trustee and the Holders for the term of this Guarantee Agreement ACE USA, Inc.
1133 Avenue of the Americas, 32nd Floor, New York, New York 10036, as its agent
to receive on its behalf service of all process (with a copy of all
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such service of process to be delivered to Peter N. Mear, General Counsel and
Secretary, ACE Limited, The ACE Building, 30 Woodbourne Avenue, Hamilton, HM 08,
Bermuda) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by the
Guarantor to be effective and binding service on it in every respect whether or
not the Guarantor shall then be doing or shall have at any time done business in
New York. Such appointment shall be irrevocable so long as any of the Securities
or the obligations of the Guarantor hereunder remain outstanding, or until the
appointment of a successor by the Guarantor and such successor's acceptance of
such appointment. Upon such acceptance, the Guarantor shall notify the Guarantee
Trustee of the name and address of such successor. The Guarantor further agrees
for the benefit of the Guarantee Trustee and the Holders to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
said Ace USA, Inc. in full force and effect so long as any of the Preferred
Securities or the obligations of the Guarantor hereunder shall be outstanding.
The Guarantee Trustee shall not be obligated and shall have no responsibility
with respect to any failure by the Guarantor to take any such action. Nothing
herein shall affect the right to serve process in any other manner permitted by
any law or limit the right of the Guarantee Trustee or any Holder to institute
proceedings against the Guarantor in the courts of any other jurisdiction or
jurisdictions.
SECTION 8.8 Judgment Currency
The Guarantor 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 any Guarantee Payment
(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 Guarantee 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
Guarantee Agreement 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, 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 Guarantee Agreement. 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.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
ACE LIMITED.,
as Guarantor
By:
-----------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By:
-----------------------------
Name:
Title:
20
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Exhibit 4.20
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GUARANTEE AGREEMENT
BETWEEN
ACE LIMITED
(AS GUARANTOR)
AND
THE FIRST NATIONAL BANK OF CHICAGO
(AS TRUSTEE)
DATED AS OF
_____________, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions......................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.................................5
SECTION 2.2 List of Holders..................................................5
SECTION 2.3 Reports by the Guarantee Trustee.................................5
SECTION 2.4 Periodic Reports to Guarantee Trustee...........................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................6
SECTION 2.6 Events of Default; Waiver........................................6
SECTION 2.7 Event of Default; Notice.........................................6
SECTION 2.8 Conflicting Interests............................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.......................7
SECTION 3.2 Certain Rights of the Guarantee Trustee..........................8
SECTION 3.3 Indemnity.......................................................10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility..................................10
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustees............................................10
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.......................................................11
SECTION 5.2 Waiver of Notice and Demand.....................................11
SECTION 5.3 Obligations Not Affected........................................11
SECTION 5.4 Rights of Holders...............................................12
SECTION 5.5 Guarantee of Payment............................................13
SECTION 5.6 Subrogation.....................................................13
SECTION 5.7 Independent Obligations.........................................13
SECTION 5.8 Net Payments....................................................13
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ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions......................................14
SECTION 6.2 Ranking.........................................................15
SECTION 6.3 Pari Passu Guarantees...........................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.....................................................16
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns..........................................16
SECTION 8.2 Amendments......................................................16
SECTION 8.3 Notices.........................................................16
SECTION 8.4 Benefit.........................................................17
SECTION 8.5 Governing Law...................................................18
SECTION 8.6 Interpretation..................................................18
SECTION 8.7 Submission to Jurisdiction......................................18
SECTION 8.8 Judgment Currency...............................................19
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _______, 1999, is executed and
delivered by ACE Limited, a Cayman Islands company (the "Guarantor"), having its
principal executive offices at The ACE Building, 30 Woodbourne Avenue, Hamilton
HM 08 Bermuda, and The First National Bank of Chicago, a national banking
association, having a corporate trust office at One First National Plaza, Suite
0126, Chicago, Illinois 60670-0126, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of ACE Capital Trust III, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
________, 1999, among the Trustees named therein, ACE INA Holdings Inc., a
Delaware corporation and a wholly-owned subsidiary of the Guarantor ("ACE INA"),
as depositor (in such capacity, the "Depositor"), and the Holders from time to
time of undivided beneficial ownership interests in the assets of the Issuer
(the "Trust Agreement"), the Issuer is issuing up to $_______ ($_______ if the
Underwriters' over-allotment option pursuant to the Underwriting Agreement and
the Pricing Agreement is exercised in full), aggregate liquidation preference of
its __% Trust Originated Preferred Securities (liquidation preference $__ per
preferred security) (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), will be used to purchase the Debentures
(as defined herein) of ACE INA (in its capacity as issuer of the Debentures, the
"Debenture Issuer"), which will be deposited with The First National Bank of
Chicago, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used,
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but not otherwise defined herein shall have the meanings assigned to such terms
in the Trust Agreement as in effect on the date hereof.
"Additional Amounts" means any additional amounts which are required hereby
or by the terms of the Preferred Securities, under circumstances specified
herein or therein, to be paid by the Guarantor in respect of certain taxes,
assessments or other governmental charges imposed on Holders specified therein
and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purpose of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capitalized Lease Obligations" 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.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Debenture Guarantee" means the full and unconditional payment guarantee
and indemnity of the Debenture Guarantor provided for in the Indenture with
respect to the Debentures.
"Debenture Guarantor" means ACE Limited, in its capacity as guarantor of
the Debentures under the Indenture.
"Debentures" means the series of subordinated debt securities of the
Debenture Issuer designated the __% Junior Subordinated Debentures due _______,
_____ held by the Property Trustee.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) that are required to be paid on such Preferred
Securities, to the extent the Issuer shall have funds on hand available therefor
at such time, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price") with respect to
Preferred Securities called for redemption by the Issuer to the extent the
Issuer shall have funds on hand available therefor at such time and (iii) upon a
voluntary or involuntary dissolution,
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winding-up or liquidation of the Issuer, unless Debentures are distributed to
the Holders, the lesser of (a) the aggregate of the liquidation preference of
$__ per Preferred Security plus accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Issuer shall have
funds on hand available to make such payment at such time and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Depositor, the Guarantee Trustee or any Affiliate of
the Guarantor, the Depositor, or the Guarantee Trustee.
"Indebtedness" means, with respect to any Person, (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; and (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 (vii) any
amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi)
above.
"Indenture" means the Subordinated Indenture dated as of _______, 1999
among the Debenture Issuer, the Debenture Guarantor and The First National Bank
of Chicago, as trustee, and any indenture supplemental thereto pursuant to which
the Debentures and the Debenture Guarantee are to be issued to the Property
Trustee of the Issuer.
"List of Holders" has the meaning specified in Section 2.2(a).
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"Majority in liquidation preference of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all
then outstanding Preferred Securities issued by the Issuer.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board of Directors, a Vice Chairman, the
President, any Vice President, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee shall
include:
(a) a statement that the officer signing the Officer's Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer within the
Corporate Trust Department 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 that officer's knowledge of and familiarity with
the particular subject.
"Senior Indebtedness" means all Indebtedness of the Guarantor (including
its Indebtedness, as Debenture Guarantor, under the Indenture) outstanding at
any time, except (a) the Indebtedness under this Guarantee Agreement, (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 this Guarantee Agreement or to other Indebtedness of the Guarantor which is
subordinated to or pari passu with this Guarantee Agreement, (c) Indebtedness of
the Guarantor to an Affiliate of the Guarantor, (d) interest accruing after the
filing of a petition initiating any proceeding referred to in Section 5.1(7) and
5.1(8) of the Indenture unless such interest is an allowed claim enforceable
against the Guarantor in a proceeding under federal or state bankruptcy laws,
(e) trade accounts payable and (f) similar Guarantee Agreements issued by the
Guarantor on behalf of holders of preferred securities of any other ACE Capital
Trust or any trust, partnership or other entity affiliated with the Guarantor
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which is a financing vehicle of the Guarantor or any Affiliate of the Guarantor
in connection with the issuance by such entity of preferred securities or other
securities which are similar to preferred securities that are guaranteed by the
Guarantor pursuant to an instrument that ranks pari passu with or junior in
right of payment to this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 List of Holders
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, not later than May 1 and November 1 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders ("List of Holders") as of the applicable date, and
(ii) at such other times as the Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
Within 60 days after September 15 of each year commencing with September
15, ____, the Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
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SECTION 2.4 Periodic Reports to the Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders, such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation preference of the Preferred
Securities may, by vote, on behalf of all Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default known to the Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured or waived before the giving of such notice,
provided, except in the case of a default in the payment of a Guarantee Payment,
the Guarantee Trustee shall be protected in withholding such notice if and so
long as a the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Guarantee Trustee charged with the
administration of the Trust Agreement shall have obtained written notice, of
such Event of Default.
SECTION 2.8 Conflicting Interests
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its negligent
failure to act or its own bad faith or willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement, and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee 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 Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to
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determine whether or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
preference of the Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of the Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely upon, and shall be fully protected
in acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with competent legal counsel,
and the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion.
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Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(v) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
(ix) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation preference of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No
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permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.
SECTION 3.3 Indemnity
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on the part of the Guarantee Trustee, arising
out of or in connection with the acceptance or administration of this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Agreement as a result of any amount due to it
under this Guarantee Agreement.
The provisions of this Section 3.3 shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor or the Depositor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital of at least 50 million U.S.
dollars ($50,000,000), and shall be a corporation meeting the requirements
of Section 310(c) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
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(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer, through the Debenture Issuer, to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or so provided by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation preference of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may, to the extent permitted by law,
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives
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any right or remedy to require that any action on this Guarantee Agreement be
brought first against the Issuer or any other Person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Guarantee creates a guarantee of payment and not of collection. This
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the Issuer)
or upon distribution of Debentures to Holders as provided in the Trust
Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
SECTION 5.8 Net Payments
All Guarantee Payments required to be made hereunder shall be made by the
Guarantor without withholding or deduction at source for, or on account of, any
present or future taxes, fees, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the Cayman Islands or
Bermuda (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 Guarantor shall, subject to
certain limitations and exceptions set forth below, pay to the Holder of any
Preferred Security such Additional Amounts as may be necessary so that every
Guarantee Payment made to such Holder, after such withholding or deduction,
shall not be less than the amount provided for in this Guarantee Agreement to be
then due and payable; provided,
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however, that the Guarantor shall not be required to make payment of such
Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever
nature which would not have been imposed but for the fact that such Holder: (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 Preferred Security; (B)
presented such Preferred Security for payment in the relevant taxing
jurisdiction or any political subdivision thereof, unless such Preferred
Security could not have been presented for payment elsewhere; or (C) presented
such Preferred Security more than thirty (30) days after the date on which the
payment in respect of such Preferred Security first became due and payable 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 Preferred
Security for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, 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
Preferred Security to comply with any reasonable request by the Guarantor or the
Trust 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; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any Guarantee Payment to
any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of the related Preferred 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 such Preferred Security.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
The Guarantor hereby covenants and agrees that, so long as any Preferred
Securities remain outstanding, it will not, and will not permit any of its
Subsidiaries (including the Debenture Issuer) to, (a) declare or pay any
dividends or distributions on, or redeem, purchase,
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acquire or make a liquidation payment with respect to, any of the outstanding
capital stock of the Debenture Issuer or the Guarantor, as the case may be, or
(b) make any payment of principal of, interest or premium, if any, on or repay,
repurchase or redeem any debt security of the Debenture Issuer or the Guarantor,
as the case may be, that ranks junior in interest to the Debentures or the
guarantee in respect thereof, as the case may be, or make any guarantee payments
with respect to any guarantee by the Debenture Issuer or the Guarantor, as the
case may be, of the debt securities of any Subsidiary of the Debenture Issuer or
the Guarantor, as the case may be, if such guarantee ranks junior in interest to
the Debentures or the guarantee in respect thereof, as the case may be (other
than (i) dividends or distributions on the Capital Stock (as defined in the
Indenture) of the Debenture Issuer paid or made to the Guarantor and dividends
or distributions in Common Stock (as defined in the Indenture) of the Debenture
Issuer or the Guarantor, as the case may be, (ii) redemptions or purchases of
any rights outstanding under a shareholder rights plan of the Debenture Issuer
or the Guarantor, as the case may be, 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 Debenture
Issuer or the Guarantor, as the case may be, for its respective directors,
officers or employees) if at such time (1) there shall have occurred any event
of which the Debenture Issuer or the Guarantor, as the case may be, has actual
knowledge that (A) with the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Indenture and (B) in respect of which
the Debenture Issuer or the Guarantor, as the case may be, shall not have taken
reasonable steps to cure, (2) the Guarantor shall be in default with respect to
its payment of any obligations under this Guarantee Agreement or (3) the
Debenture Issuer shall have given notice of its election to begin an Extension
Period (as defined in the Indenture) with respect to the Debentures as provided
in the Indenture and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
SECTION 6.2 Ranking
This Guarantee will constitute an unsecured obligation of the Guarantor and
will rank subordinate and junior in right of payment to all Senior Indebtedness
of the Guarantor.
SECTION 6.3 Pari Passu Guarantees
This Guarantee Agreement shall rank pari passu with any similar Guarantee
Agreements issued by the Guarantor on behalf of holders of preferred securities
of any other ACE Capital Trust or any trust, partnership or other entity
affiliated with the Guarantor which is a financing vehicle of the Guarantor or
any Affiliate of the Guarantor in connection with the issuance by such entity of
preferred securities or other securities which are similar to preferred
securities that are guaranteed by the Guarantor pursuant to an instrument that
ranks pari passu with or junior in right of payment to this Guarantee Agreement.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Guarantee shall terminate and be of no further force and effect upon
(i) full payment of the Redemption Price of all Preferred Securities, (ii) the
distribution of the Debentures to all Holders in exchange for the Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to the Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger,
or sale involving the Guarantor that is permitted under Article 8 of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 8.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders in any material respect (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of at least a Majority in liquidation preference of the Preferred
Securities. The provisions of Article VI of the Trust Agreement concerning
meetings of Holders apply to the giving of such approval.
SECTION 8.3 Notices
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below (or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders):
The First National Bank of Chicago
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One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: ______________
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the
Holders):
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton, HM 08, Bermuda
Attn: General Counsel and Secretary
(c) If given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
ACE Capital Trust III
c/o ACE USA, Inc.
Six Concourse Parkway
Suite 2500
Atlanta, Georgia 30328
Attn: General Counsel and Secretary
with a copy to:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: ______________
(d) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.4 Benefit
This Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
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SECTION 8.5 Governing Law
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND PERFORMED IN THAT STATE.
SECTION 8.6 Interpretation
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement, but not defined in
the preamble hereto have the respective meanings assigned to them in this
Section 1.1 or in the Trust Agreement, as the case may be;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement, unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement, unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
(g) the masculine, feminine, or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.7 Submission to Jurisdiction
The Guarantor agrees that any judicial proceedings instituted in relation
to any matter arising under this Guarantee Agreement may be brought in any
United States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York to the extent that such court has
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally
and unconditionally, the jurisdiction of the aforesaid courts, acknowledges
their competence and irrevocably agrees to be bound by any judgement rendered in
such proceeding. The Guarantor also irrevocably and unconditionally waives for
the benefit of the Guarantee Trustee and the Holders any immunity from
jurisdiction and any immunity from legal process (whether through service or
notice, attachment prior to judgement, attachment in the aid of execution,
execution or otherwise) in respect of this Guarantee Agreement. The Guarantor
hereby irrevocably designates and appoints for the benefit of the Guarantee
Trustee and the Holders for the term of this Guarantee Agreement ACE USA, Inc.
1133 Avenue of the Americas, 32nd Floor, New York, New York 10036, as its agent
to receive on its behalf service of all process (with a copy of all
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such service of process to be delivered to Peter N. Mear, General Counsel and
Secretary, ACE Limited, The ACE Building, 30 Woodbourne Avenue, Hamilton, HM 08,
Bermuda) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by the
Guarantor to be effective and binding service on it in every respect whether or
not the Guarantor shall then be doing or shall have at any time done business in
New York. Such appointment shall be irrevocable so long as any of the Securities
or the obligations of the Guarantor hereunder remain outstanding, or until the
appointment of a successor by the Guarantor and such successor's acceptance of
such appointment. Upon such acceptance, the Guarantor shall notify the Guarantee
Trustee of the name and address of such successor. The Guarantor further agrees
for the benefit of the Guarantee Trustee and the Holders to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
said Ace USA, Inc. in full force and effect so long as any of the Preferred
Securities or the obligations of the Guarantor hereunder shall be outstanding.
The Guarantee Trustee shall not be obligated and shall have no responsibility
with respect to any failure by the Guarantor to take any such action. Nothing
herein shall affect the right to serve process in any other manner permitted by
any law or limit the right of the Guarantee Trustee or any Holder to institute
proceedings against the Guarantor in the courts of any other jurisdiction or
jurisdictions.
SECTION 8.8 Judgment Currency
The Guarantor 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 any Guarantee Payment
(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 Guarantee 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
Guarantee Agreement 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, 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 Guarantee Agreement. 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.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
ACE LIMITED.,
as Guarantor
By:
-------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By:
-------------------------------------
Name:
Title:
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Exhibit 5.1
August 12, 1999
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton, HM 08, Bermuda
Re: ACE Limited
Registration Statement on Form S-3
----------------------------------
Dear Sirs:
We have acted as Cayman Islands counsel to ACE Limited (the "Company") in
connection with the registration of Ordinary Shares, Preferred Shares, Debt
Securities, Warrants to Purchase Ordinary Shares (the "Ordinary Share
Warrants"), Warrants to Purchase Preferred Shares (the "Preferred Share
Warrants"), Warrants to Purchase Debt Securities (the "Debt Warrants"; the
Ordinary Share Warrants, Preferred Share Warrants and Debt Warrants are
collectively referred to as the "Warrants") and Stock Purchase Contracts of the
Company under the Securities Act of 1933, as amended, in accordance with the
Company's Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on May 20, 1999, as amended by Pre-Effective Amendment No. 1
to the Registration Statement filed with the Securities and Exchange Commission
on August 6, 1999, as amended by Pre-Effective Amendment No. 2 filed with the
Securities and Exchange Commission on August 12, 1999 (collectively, the
"Registration Statement").
In rendering the opinions expressed herein, we have examined and are
familiar with the Registration Statement as an exhibit to which this opinion
will be filed. We have also examined such other documents and instruments
(including the Company's Memorandum and Articles of Association, as amended) and
have made such further investigation as we have deemed necessary or appropriate
in connection with this opinion.
We have relied in giving this opinion on certifications, given by the
Company's officers. We have assumed that there will be no intervening changes
to the structure of the proposed issue, nor to the Company's Memorandum or
Articles of Association, the laws of the Cayman Islands or any other relevant
matter.
Based upon and subject to the foregoing, and having regard for legal
considerations which we deem relevant, we are of the opinion that:
(i) On the basis that the contractual consideration (being worth not less
than the par value) for the Ordinary Shares (including the Ordinary
Shares issuable upon the exercise of the Ordinary Share Warrants) is
duly transferred to, and received by, the Company, such Ordinary
Shares issued or to be issued may properly be registered in the
Company's share register and credited as fully paid under Cayman
Islands law.
(ii) On the basis that the contractual consideration (being worth not less
than the par value) for the Preferred Shares (including the Preferred
Shares issuable upon the exercise of the Preferred Share Warrants),
when the terms of such Preferred Shares are set, is duly transferred
to, and received by, the Company, such Preferred Shares issued or to
be issued may properly be registered in the Company's share register
and credited as fully paid under Cayman Islands law.
(iii) Fully paid shares are not subject to further calls or assessments by
the Company.
(iv) The Company has been incorporated as an exempted company under the
Companies Law (1995 Revision) of the Cayman Islands and the liability
of its shareholders is limited to the amount, if any, unpaid on their
shares (per Clause 5 of the Company's Memorandum of Association). On
<PAGE>
the basis that all such shares are fully paid, there is no rule of
Cayman Islands law that would impose any further liability on
persons holding shares in the Company, merely by reason of such
shareholding.
(v) The ACE INA Senior Indenture is duly authorized by ACE.
(vi) The ACE INA Subordinated Indenture is duly authorized by ACE.
(vii) The Guaranty is duly authorized by ACE.
(viii) The ACE Senior Indenture is duly authorized by ACE.
(ix) The ACE Senior Notes are duly authorized by ACE.
(x) The ACE Subordinated Indenture is duly authorized by ACE.
(xi) The ACE Subordinated Notes are duly authorized by ACE.
(xii) The Warrant Agreements are duly authorized by ACE.
(xiii) The Warrants, when the terms of such are set by the Pricing
Committee of ACE, will be duly authorized by ACE.
(xiv) The Stock Purchase Contracts are duly authorized by ACE.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to this firm in such Registration
Statement.
Yours faithfully,
Maples and Calder
<PAGE>
Exhibit 5.2
August 12, 1999
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton, HM 08, Bermuda
ACE INA Holdings Inc.
Two Liberty Place
1601 Chestnut Street
Philadelphia, Pennsylvania 19192
Re: ACE Limited
ACE INA Holdings Inc.
Registration Statement on Form S-3
----------------------------------
Dear Ladies and Gentlemen:
We have represented ACE Limited ("ACE"), a Cayman Islands company limited
by shares, in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of a
Registration Statement on Form S-3 (the "Registration Statement") relating to
ACE's Ordinary Shares, Preferred Shares, Debt Securities, Warrants to Purchase
Ordinary Shares (the "Ordinary Share Warrants"), Warrants to Purchase Preferred
Shares (the "Preferred Share Warrants"), Warrants to Purchase Debt Securities
(the "Debt Warrants"; the Ordinary Share Warrants, Preferred Share Warrants and
Debt Warrants are collectively referred to as the "Warrants") and Stock Purchase
Contracts. We have also represented ACE INA Holdings Inc. ("ACE INA"), a
Delaware corporation, in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
of the Registration Statement relating to ACE INA's Debt Securities, which are
fully and unconditionally guaranteed (the "Guaranty") by ACE.
The ACE INA Debt Securities are to be issued under a senior indenture (the
"ACE INA Senior Indenture") among ACE INA, ACE and The First National Bank of
Chicago, as trustee, or a subordinated indenture (the "ACE INA Subordinated
Indenture" and, together with the ACE INA Senior Indenture, the "ACE INA
Indentures") among ACE INA, ACE and The First National Bank of Chicago, as
trustee, in each case to be entered into prior to the issuance of the ACE INA
Debt Securities, with certain terms of the ACE INA Debt Securities to be
established by or pursuant to resolutions of the Board of Directors of ACE and
ACE INA as part of the corporate action taken and to be taken relating to the
issuance of the ACE INA Debt Securities.
The ACE Debt Securities are to be issued under a senior indenture (the "ACE
Senior Indenture") among ACE and The First National Bank of Chicago, as trustee,
or a subordinated indenture (the "ACE Subordinated Indenture" and, together
with the ACE Senior Indenture, the "ACE Indentures") among ACE and The First
National Bank of Chicago, as trustee, in each case to be entered into prior to
the issuance of the ACE Debt Securities, with certain terms of the ACE Debt
Securities to be established by or pursuant to resolutions of the Board of
Directors of ACE as part of the corporate action taken and to be taken relating
to the issuance of the ACE Debt Securities.
The Warrants are to be issued pursuant to the terms of one or more warrant
agreements (the "Warrant Agreements") to be entered into prior to the issuance
of the Warrants, with certain terms of the Warrants to be established by or
pursuant to resolutions of the Board of Directors of ACE as part of the
corporate action taken and to be taken relating to the issuance of the Warrants.
In rendering the opinions expressed herein, we have examined and are
familiar with (i) the Registration Statements as an exhibit to which this
opinion will be filed, (ii) the form of ACE INA Senior Indenture filed as an
<PAGE>
exhibit to the Registration Statement, (iii) the form of ACE INA Senior Note
(including the form of ACE Guaranty) attached as an exhibit to the form of the
ACE INA Senior Indenture, (iv) the form of ACE INA Subordinated Indenture filed
as an exhibit to the Registration Statement, (v) the form of ACE INA
Subordinated Note (including the form of ACE Guaranty) attached as an exhibit to
the form of ACE INA Subordinated Indenture, (vi) the form of ACE Senior
Indenture filed as an exhibit to the Registration Statement, (vii) the form of
ACE Senior Note attached as an exhibit to the form of ACE Senior Indenture,
(viii) the form of ACE Subordinated Indenture filed as an exhibit to the
Registration Statement, (ix) the form of ACE Subordinated Note attached as an
exhibit to the form of ACE Subordinated Indenture and (x) the form of Warrant
Agreements attached as an exhibit to the Registration Statement. We have also
examined such other documents and instruments and have made such further
investigations as we have deemed necessary or appropriate in connection with
this opinion.
Based upon and subject to the foregoing, and having regard for legal
considerations which we deem relevant, we are of the opinion that:
(i) ACE INA Holdings Inc. is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware.
(ii) The ACE INA Senior Indenture, assuming the due authorization thereof
by ACE and when duly executed and delivered, will constitute a valid
and binding obligation of ACE INA enforceable against ACE INA and ACE
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforceability of creditors' rights generally and to court decisions
with respect thereto and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity
or at law).
(iii) The ACE INA Senior Notes, when duly executed and delivered and
authenticated in accordance with the Indenture and when payment
therefor is received, will constitute valid and legally binding
obligations of ACE INA entitled to the benefits provided by the ACE
INA Senior Indenture.
(iv) The ACE INA Subordinated Indenture, assuming the due authorization
thereof by ACE and when duly executed and delivered, will constitute a
valid and binding obligation of ACE INA enforceable against ACE INA
and ACE in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforceability of creditors' rights generally and to
court decisions with respect thereto and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(v) The ACE INA Subordinated Notes, when duly executed and delivered and
authenticated in accordance with the Indenture and when payment
therefor is received, will constitute valid and legally binding
obligations of ACE INA entitled to the benefits provided by the ACE
INA Subordinated Indenture.
(vi) The Guaranty, assuming the due authorization thereof and when duly
executed and delivered and endorsed on an ACE INA Senior Note or ACE
INA Subordinated Note, will be enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforceability of creditors'
rights generally and to court decisions with respect thereto and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(vii) The ACE Senior Indenture, assuming the due authorization thereof and
when duly executed and delivered, will be enforceable against ACE in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforceability of creditors' rights generally and to court decisions
with respect thereto and to general principles
<PAGE>
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(viii) The ACE Senior Notes, assuming the due authorization thereof and when
duly executed and delivered and when authenticated in accordance with
the ACE Senior Indenture and when payment therefor is received, will
be entitled to the benefits provided by the ACE Senior Indenture.
(ix) The ACE Subordinated Indenture, assuming the due authorization thereof
and when duly executed and delivered, will be enforceable against ACE
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforceability of creditors' rights generally and to court decisions
with respect thereto and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity
or at law).
(x) The ACE Subordinated Notes, assuming the due authorization thereof and
when duly executed and delivered and authenticated in accordance with
the ACE Subordinated Indenture and when payment therefor is received,
will be entitled to the benefits provided by the ACE Subordinated
Indenture.
(xi) The Warrant Agreements, assuming the due authorization thereof and
when duly executed and delivered will be enforceable against ACE in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(xii) The Warrants, assuming the due authorization thereof and when duly
executed and delivered and when countersigned in accordance with the
Warrant Agreements, will be entitled to the benefits provided by the
Warrant Agreements.
(xiii) The Stock Purchase Contracts, assuming the due authorization thereof
and when duly executed and delivered, will be enforceable against ACE
in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to this firm in such Registration
Statement.
Very truly yours,
Mayer, Brown & Platt
<PAGE>
Exhibit 5.3A
[Letterhead of Richards, Layton & Finger, P.A.]
August 11, 1999
ACE Capital Trust I
c/o ACE Limited
30 Woodbourne Avenue
Hamilton, HM 08 Bermuda
Re: ACE Capital Trust I
-------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ACE INA Holdings Inc., a
Delaware corporation (the "Company"), ACE Limited, a Cayman Islands company
limited by shares ("ACE Limited"), and ACE Capital Trust I, a Delaware business
trust (the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of May 19, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 19, 1999;
(b) The Trust Agreement of the Trust, dated as of May 19, 1999 (the
"Original Trust Agreement"), among ACE Limited and the trustees of the Trust
named therein, as amended by the Assignment and Assumption Agreement and First
Amendment to the Original Trust Agreement, dated as of August 5, 1999, among the
Company, ACE Limited and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C and E, the "Trust Agreement"), to be entered into among
the Company,
<PAGE>
ACE Capital Trust I
August 11, 1999
Page 2
as depositor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement (the "Initial Registration Statement")
on Form S-3 (Registration No. 333-78841), filed by the Trust, the Company and
others with the Securities and Exchange Commission on May 20, 1999, as amended
by Pre-Effective Amendment No. 1 to the Initial Registration Statement, filed
by the Trust, the Company and others with the Securities and Exchange Commission
on August 6, 1999 ("Amendment No. 1"), as further amended by Pre-Effective
Amendment No. 2 to the Initial Registration Statement, as proposed to be filed
by the Trust, the Company and others with the Securities and Exchange Commission
on or about August 11, 1999 ("Amendment No. 2"), including a related
preliminary prospectus (the "Prospectus"), relating to the Preferred Securities
of the Trust representing undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities") (the Initial Registration Statement as amended by Amendment No. 1
and Amendment No. 2 being hereinafter referred to as the "Registration
Statement"); and
(e) A Certificate of Good Standing for the Trust, dated August 11,
1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as
defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE>
ACE Capital Trust I
August 11, 1999
Page 3
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, (vii) that the Preferred Securities are issued and sold
to the Preferred Security Holders in accordance with the Trust Agreement and the
Registration Statement, and (viii) that Bank One Delaware, Inc. satisfies for
the Trust Section 3807 of the Delaware Business Trust Act. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
<PAGE>
ACE Capital Trust I
August 11, 1999
Page 4
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Opinions" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
Richards, Layton & Finger, P.A.
BJK/DJM
<PAGE>
Exhibit 5.3B
[Letterhead of Richards, Layton & Finger, P.A.]
August 11, 1999
ACE Capital Trust II
c/o ACE Limited
30 Woodbourne Avenue
Hamilton, HM 08 Bermuda
Re: ACE Capital Trust II
--------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ACE INA Holdings Inc., a
Delaware corporation (the "Company"), ACE Limited, a Cayman Islands company
limited by shares ("ACE Limited") and ACE Capital Trust II, a Delaware business
trust (the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of May 19, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 19, 1999;
(b) The Trust Agreement of the Trust, dated as of May 19, 1999 (the
"Original Trust Agreement"), among ACE Limited and the trustees of the Trust
named therein, as amended by the Assignment and Assumption Agreement and First
Amendment to the Original Trust Agreement, dated as of August 5, 1999, among the
Company, ACE Limited and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C and E, the "Trust Agreement"), to be entered into among
the Company,
<PAGE>
ACE Capital Trust II
August 11, 1999
Page 2
as depositor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement (the "Initial Registration Statement")
on Form S-3 (Registration No. 333-78841), filed by the Trust, the Company and
others with the Securities and Exchange Commission on May 20, 1999, as amended
by Pre-Effective Amendment No. 1 to the Initial Registration Statement, filed
by the Trust, the Company and others with the Securities and Exchange Commission
on August 6, 1999 ("Amendment No. 1"), as further amended by Pre-Effective
Amendment No. 2 to the Initial Registration Statement, as proposed to be filed
by the Trust, the Company and others with the Securities and Exchange Commission
on or about August 11, 1999 ("Amendment No. 2"), including a related
preliminary prospectus (the "Prospectus"), relating to the Preferred Securities
of the Trust representing undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities") (the Initial Registration Statement as amended by Amendment No. 1
and Amendment No. 2 being hereinafter referred to as the "Registration
Statement"); and
(e) A Certificate of Good Standing for the Trust, dated August 11,
1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as
defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE>
ACE Capital Trust II
August 11, 1999
Page 3
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, (vii) that the Preferred Securities are issued and sold
to the Preferred Security Holders in accordance with the Trust Agreement and the
Registration Statement, and (viii) that Bank One Delaware, Inc. satisfies for
the Trust Section 3807 of the Delaware Business Trust Act. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
<PAGE>
ACE Capital Trust II
August 11, 1999
Page 4
We note that the Preferred Security Holders may be obligated to make payments as
set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Opinions" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
Richards, Layton & Finger, P.A.
BJK/DJM
<PAGE>
Exhibit 5.3C
[Letterhead of Richards, Layton & Finger, P.A.]
August 11, 1999
ACE Capital Trust III
c/o ACE Limited
30 Woodbourne Avenue
Hamilton, HM 08 Bermuda
Re: ACE Capital Trust III
---------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ACE INA Holdings Inc., a
Delaware corporation (the "Company"), ACE Limited, a Cayman Islands company
limited by shares ("ACE Limited") and ACE Capital Trust III, a Delaware business
trust (the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of May 19, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on May 19, 1999;
(b) The Trust Agreement of the Trust, dated as of May 19, 1999 (the
"Original Trust Agreement"), among ACE Limited and the trustees of the Trust
named therein, as amended by the Assignment and Assumption Agreement and First
Amendment to the Original Trust Agreement, dated as of August 5, 1999, among the
Company, ACE Limited and the trustees of the Trust named therein;
<PAGE>
ACE Capital Trust III
August 11, 1999
Page 2
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C and E, the "Trust Agreement"), to be entered into among
the Company, as depositor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement (the "Initial Registration Statement")
on Form S-3 (Registration No. 333-78841), filed by the Trust, the Company and
others with the Securities and Exchange Commission on May 20, 1999, as amended
by Pre-Effective Amendment No. 1 to the Initial Registration Statement, filed
by the Trust, the Company and others with the Securities and Exchange Commission
on August 6, 1999 ("Amendment No. 1"), as further amended by Pre-Effective
Amendment No. 2 to the Initial Registration Statement, as proposed to be filed
by the Trust, the Company and others with the Securities and Exchange Commission
on or about August 11, 1999 ("Amendment No. 2"), including a related
preliminary prospectus (the "Prospectus"), relating to the Preferred Securities
of the Trust representing undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities") (the Initial Registration Statement as amended by Amendment No. 1
and Amendment No. 2 being hereinafter referred to as the "Registration
Statement"); and
(e) A Certificate of Good Standing for the Trust, dated August 11,
1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as
defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the
<PAGE>
ACE Capital Trust III
August 11, 1999
Page 3
originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, (vii) that the Preferred Securities are issued and sold
to the Preferred Security Holders in accordance with the Trust Agreement and the
Registration Statement, and (viii) that Bank One Delaware, Inc. satisfies for
the Trust Section 3807 of the Delaware Business Trust Act. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
<PAGE>
ACE Capital Trust III
August 11, 1999
Page 4
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Opinions" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
Richards, Layton & Finger, P.A.
BJK/DJM
<PAGE>
Exhibit 12.1
Earnings to Fixed Charges Calculation
<TABLE>
<CAPTION>
Six months to
31-Mar Fiscal year ended September 30
------ ------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings Per Financial Statements 367,558 370,111 560,151 502,725 327,619 247,369 (45,678)
Add (deduct):
Provision for income taxes 10,494 13,198 20,040 25,181 26,543 7,673 -
Fixed charges 10,071 7,369 27,059 13,290 11,314 5,536 333
------------------------------------------------------------------------------------------
Earnings for Computation 388,123 390,678 607,250 541,196 365,476 260,578 (45,345)
==========================================================================================
Fixed Charges
- -------------
Interest expense 9,271 6,553 25,459 11,657 10,481 5,036 -
One third of payments under
operating leases. 800 816 1,600 1,633 833 500 333
-----------------------------------------------------------------------------------------
Total Fixed Charges 10,071 7,369 27,059 13,290 11,314 5,536 333
=========================================================================================
Ratio of Earnings to Fixed Charges 38.54 53.02 22.44 40.72 32.30 47.07 (136.17)
- ---------------------------------- =========================================================================================
</TABLE>
