EXHIBIT 99.5
ACE INA HOLDINGS INC.,
Issuer
and
ACE LIMITED,
Guarantor
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
_______________
INDENTURE
_______________
Dated as of June 15, 1999
Subordinated Debt Securities
Table of Contents
Page
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ARTICLE 1
Definitions and Other Provisions of General Application 2
Section 1.1. Definitions.................................................................................. 2
ACE Trusts............................................................................................... 2
Act...................................................................................................... 2
Additional Amounts....................................................................................... 2
Additional Interests..................................................................................... 2
Additional Sums.......................................................................................... 3
Additional Taxes......................................................................................... 3
Affiliate................................................................................................ 3
Authenticating Agent..................................................................................... 3
Authorized Newspaper..................................................................................... 3
Authorized Officer....................................................................................... 3
Bearer Security.......................................................................................... 3
Board of Directors....................................................................................... 3
Board Resolution......................................................................................... 3
Business Day............................................................................................. 4
Capital Stock............................................................................................ 4
Capitalized Lease Obligation............................................................................. 4
Commission............................................................................................... 4
Common Securities........................................................................................ 4
Common Stock............................................................................................. 4
Company.................................................................................................. 4
Company Request.......................................................................................... 4
Company Senior Indebtedness.............................................................................. 4
Conversion Event......................................................................................... 5
Corporate Trust Office................................................................................... 5
Corporation.............................................................................................. 5
Coupon................................................................................................... 5
Currency................................................................................................. 5
CUSIP number............................................................................................. 5
Defaulted Interest....................................................................................... 5
Direct Action............................................................................................ 5
Distributions............................................................................................ 5
Dollar................................................................................................... 5
Event of Default......................................................................................... 5
Extension Period......................................................................................... 6
Foreign Currency......................................................................................... 6
Government Obligations................................................................................... 6
Guarantee................................................................................................ 6
Guarantee Agreement...................................................................................... 6
Guarantor................................................................................................ 6
Guarantor's Board of Directors........................................................................... 6
Guarantor's Board Resolution............................................................................. 6
Guarantor's Officer's Certificate........................................................................ 7
Guarantor Request"and "Guarantor Order................................................................... 7
Guarantor Senior Indebtedness............................................................................ 7
Holder................................................................................................... 7
Indebtedness............................................................................................. 7
Indenture................................................................................................ 8
Independent Public Accountants........................................................................... 8
Indexed Security......................................................................................... 8
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Interest................................................................................................. 8
Interest Payment Date.................................................................................... 8
Investment Company Event................................................................................. 8
Judgment Currency........................................................................................ 8
Lien..................................................................................................... 9
Maturity................................................................................................. 9
New York Banking Day..................................................................................... 9
1940 Act................................................................................................. 9
Office................................................................................................... 9
Original Issue Discount Security......................................................................... 9
Outstanding.............................................................................................. 9
Person................................................................................................... 11
Place of Payment......................................................................................... 11
Preferred Securities..................................................................................... 11
Preferred Securities Guarantee........................................................................... 11
Predecessor Security..................................................................................... 11
Preferred Stock.......................................................................................... 11
Property Trustee......................................................................................... 11
Redemption Date.......................................................................................... 11
Redemption Price......................................................................................... 12
Registered Security...................................................................................... 12
Regular Record Date...................................................................................... 12
Required Currency........................................................................................ 12
Responsible Officer...................................................................................... 12
Security................................................................................................. 12
Security Register........................................................................................ 12
Senior Indebtedness...................................................................................... 12
Special Event............................................................................................ 12
Special Record Date...................................................................................... 12
Stated Maturity.......................................................................................... 12
Subsidiary............................................................................................... 13
Tax Event................................................................................................ 13
Trust Agreement.......................................................................................... 13
Trust Indenture Act...................................................................................... 13
Trust Securities......................................................................................... 13
Trustee.................................................................................................. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇............................................................................................ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Alien...................................................................................... 14
U.S. Depositor........................................................................................... 14
Vice President........................................................................................... 14
Section 1.2. Compliance Certificates and Opinions......................................................... 14
Section 1.3. Form of Documents Delivered to Trustee....................................................... 15
Section 1.4. Acts of Holders.............................................................................. 15
Section 1.5. Notices, etc. to Trustee, Company and Guarantor.............................................. 18
Section 1.6. Notice to Holders of Securities; Waiver...................................................... 18
Section 1.7. Language of Notices.......................................................................... 19
Section 1.8. Conflict with Trust Indenture Act............................................................ 19
Section 1.9. Effect of Headings and Table of Contents..................................................... 19
Section 1.10. Successors and Assigns....................................................................... 19
Section 1.11. Separability Clause.......................................................................... 20
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Section 1.12. Holders of Preferred Securities as Third Party Beneficiaries................................. 20
Section 1.13. Benefits of Indenture........................................................................ 20
Section 1.14. Governing Law................................................................................ 20
Section 1.15. Legal Holidays............................................................................... 20
Section 1.16. Counterparts................................................................................. 21
Section 1.17. Judgment Currency............................................................................ 21
Section 1.18. No Security Interest Created................................................................. 21
Section 1.19. Limitation on Individual Liability........................................................... 22
Section 1.20. Submission to Jurisdiction................................................................... 22
ARTICLE 2
Securities Forms
Section 2.1. Forms Generally.............................................................................. 23
Section 2.2. Form of Trustee's Certificate of Authentication.............................................. 24
Section 2.3. Securities in Global Form.................................................................... 24
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series......................................................... 25
Section 3.2. Currency; Denominations...................................................................... 29
Section 3.3. Execution, Authentication, Delivery and Dating............................................... 29
Section 3.4. Temporary Securities......................................................................... 32
Section 3.5. Registration, Transfer and Exchange.......................................................... 32
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities............................................. 36
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved................................................................. 37
Section 3.8. Persons Deemed Owners........................................................................ 39
Section 3.9. Cancellation................................................................................. 39
Section 3.10. Computation of Interest...................................................................... 40
Section 3.11. Extension of Interest Payment Period......................................................... 40
Section 3.12. Right of Set-Off............................................................................. 41
Section 3.13. Agreed Tax Treatment......................................................................... 41
Section 3.14. Extension of Stated Maturity; Adjustment of Stated Maturity Upon an Exchange................. 41
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ARTICLE 4
Satisfaction and Discharge of Indenture
Section 4.1. Satisfaction and Discharge................................................................... 42
Section 4.2. Defeasance and Covenant Defeasance........................................................... 43
Section 4.3. Application of Trust Money................................................................... 48
ARTICLE 5
Remedies
Section 5.1. Events of Default............................................................................ 48
Section 5.2. Acceleration of Maturity; Rescission and Annulment........................................... 50
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.............................. 52
Section 5.4. Trustee May File Proofs of Claim............................................................. 53
Section 5.5. Trustee May Enforce Claims without Possession of Securities or Coupons....................... 54
Section 5.6. Application of Money Collected............................................................... 54
Section 5.7. Limitations on Suits......................................................................... 55
Section 5.8. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts........................................................................... 55
Section 5.9. Restoration of Rights and Remedies........................................................... 56
Section 5.10. Rights and Remedies Cumulative............................................................... 56
Section 5.11. Delay or Omission Not Waiver................................................................. 56
Section 5.12. Control by Holders of Securities............................................................. 57
Section 5.13. Waiver of Past Defaults...................................................................... 57
Section 5.14. Waiver of Usury, Stay or Extension Laws...................................................... 57
Section 5.15. Undertaking for Costs........................................................................ 58
ARTICLE 6
The Trustee
Section 6.1. Certain Rights of Trustee.................................................................... 58
Section 6.2. Notice of Defaults........................................................................... 60
Section 6.3. Not Responsible for Recitals or Issuance of Securities....................................... 60
Section 6.4. May Hold Securities.......................................................................... 60
Section 6.5. Money Held in Trust.......................................................................... 61
Section 6.6. Compensation and Reimbursement............................................................... 61
Section 6.7. Corporate Trustee Required; Eligibility...................................................... 62
Section 6.8. Resignation and Removal; Appointment of Successor............................................ 62
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Section 6.9. Acceptance of Appointment by Successor....................................................... 64
Section 6.10. Merger, Conversion, Consolidation or Succession to Business.................................. 65
Section 6.11. Appointment of Authenticating Agent.......................................................... 65
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...................... 67
Section 7.2. Preservation of Information; Communications to Holders....................................... 68
Section 7.3. Reports by Trustee........................................................................... 68
Section 7.4. Reports by Company and Guarantor............................................................. 68
ARTICLE 8
Consolidation, Amalgamations, Merger and Sales
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms......................................... 69
Section 8.2. Successor Person Substituted for Company..................................................... 70
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms....................................... 71
Section 8.4. Successor Person Substituted for Guarantor................................................... 71
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures without Consent of Holders........................................... 72
Section 9.2. Supplemental Indentures with Consent of Holders.............................................. 73
Section 9.3. Execution of Supplemental Indentures......................................................... 75
Section 9.4. Effect of Supplemental Indentures............................................................ 75
Section 9.5. Reference in Securities to Supplemental Indentures........................................... 76
Section 9.6. Conformity with Trust Indenture Act.......................................................... 76
Section 9.7. Effect on Senior Indebtedness................................................................ 76
Section 9.8. Notice of Supplemental Indenture............................................................. 76
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, any Premium, Interest and Additional Amounts........................... 76
Section 10.2. Maintenance of Office or Agency.............................................................. 77
Section 10.3. Money for Securities Payments to Be Held in Trust............................................ 78
Section 10.4. Additional Amounts........................................................................... 80
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Section 10.5. Corporate Existence.......................................................................... 81
Section 10.6. Waiver of Certain Covenants.................................................................. 81
Section 10.7. Company Statement as to Compliance; Notice of Certain Defaults............................... 81
Section 10.8. Guarantor Statement as to Compliance; Notice of Certain Defaults............................. 82
Section 10.9. Additional Sums.............................................................................. 82
Section 10.10. Prohibition Against Dividends, etc........................................................... 83
Section 10.11. Payment of Expenses of each ACE Trust........................................................ 84
Section 10.12. Ownership of Common Securities............................................................... 84
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article..................................................................... 84
Section 11.2. Election to Redeem; Notice to Trustee........................................................ 84
Section 11.3. Selection by Trustee of Securities to be Redeemed............................................ 85
Section 11.4. Notice of Redemption......................................................................... 85
Section 11.5. Deposit of Redemption Price.................................................................. 87
Section 11.6. Securities Payable on Redemption Date........................................................ 87
Section 11.7. Securities Redeemed in Part.................................................................. 88
Section 11.8. Right of Redemption of Securities Issued to an ACE Trust..................................... 88
ARTICLE 12
Sinking Funds
Section 12.1. Applicability of Article..................................................................... 89
Section 12.2. Satisfaction of Sinking Fund Payments with Securities........................................ 89
Section 12.3. Redemption of Securities for Sinking Fund.................................................... 90
ARTICLE 13
Repayment at the Option of Holders
Section 13.1. Applicability of Article..................................................................... 90
ARTICLE 14
Securities in Foreign Currencies
Section 14.1. Applicability of Article..................................................................... 91
ARTICLE 15
Meetings of Holders of Securities
Section 15.1. Purposes for Which Meetings May Be Called.................................................... 91
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Section 15.2. Call, Notice and Place of Meetings.......................................................... 91
Section 15.3. Persons Entitled to Vote at Meetings........................................................ 92
Section 15.4. Quorum; Action.............................................................................. 92
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings......................... 93
Section 15.6. Counting Votes and Recording Action of Meetings............................................. 94
ARTICLE 16
Subordination Of Securities
Section 16.1. Agreement to Subordinate.................................................................... 94
Section 16.2. Default on Company Senior Indebtedness...................................................... 95
Section 16.3. Liquidation; Dissolution; Bankruptcy........................................................ 95
Section 16.4. Subrogation................................................................................. 96
Section 16.5. Trustee to Effectuate Subordination......................................................... 98
Section 16.6. Notice by the Company....................................................................... 98
Section 16.7. Rights of the Trustee; Holders of Company Senior Indebtedness............................... 99
Section 16.8. Subordination May Not Be Impaired........................................................... 99
ARTICLE 17
Guarantee And Indemnity
Section 17.1. The Guarantee............................................................................... 100
Section 17.2. Net Payments................................................................................ 100
Section 17.3. Guarantee Unconditional, etc................................................................ 102
Section 17.4. Reinstatement............................................................................... 103
Section 17.5. Subrogation................................................................................. 103
Section 17.6 Indemnity.................................................................................... 103
ARTICLE 18
Subordination Of Guarantee
Section 18.1. Agreement to Subordinate Guarantee........................................................... 104
Section 18.2. Default on Guarantor Senior Indebtedness..................................................... 104
Section 18.3. Liquidation; Dissolution; Bankruptcy......................................................... 105
Section 18.4. Subrogation.................................................................................. 106
Section 18.5. Trustee to Effectuate Subordination.......................................................... 107
Section 18.6. Notice by the Guarantor...................................................................... 107
Section 18.7. Rights of the Trustee; Holders of Guarantor Senior Indebtedness.............................. 108
vii
Section 18.8. Subordination May Not Be Impaired............................................................ 109
viii
INDENTURE, dated as of June 15, 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., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, ▇▇▇▇▇▇▇▇
▇▇ 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
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:
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, ACE Capital Trust III and ACE RHINOS Trust, 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
2
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.
3
"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
4
(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
Company pursuant to an instrument that ranks pari passu with or junior in right
of payment to the Preferred Securities Guarantees.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community or
(ii) any currency unit or composite currency for the purposes for which it was
established.
"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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
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.
5
"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
6
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 and (e) trade accounts payable.
"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
7
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.
"Investment Company Event" means, in respect of an ACE Trust, the receipt
by such ACE Trust of an Opinion of Counsel, rendered by a 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.
8
"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 the Chairman of the
Board of Directors, a Vice Chairman, the President, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, 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
9
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 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
10
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.
"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 INA Holdings
Inc., 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 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.
11
"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.
"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.
12
"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 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.
"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.
13
"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 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;
14
(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.
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,
15
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 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.
16
(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 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
17
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
(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
18
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.
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.
19
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.
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
20
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 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.
21
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 (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 ▇▇▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel and Secretary, ACE Limited,
The ACE Building, 30 Woodbourne Avenue, ▇▇▇▇▇▇▇▇, ▇▇ 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
22
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.
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.
23
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 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,
24
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 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
25
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;
(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
26
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;
(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
27
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;
(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;
28
(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.
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
29
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 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; and
(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;
30
and, to the extent that this Indenture is required to be qualified under the
Trust Indenture Act in connection with the issuance of such Securities, to the
further effect that:
(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 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.
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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 Securities shall have been
appointed by the Company and shall have accepted such appointment
32
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 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
33
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 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
34
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 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
35
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.
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
36
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 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
37
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, 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
38
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 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,
39
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.
40
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 ▇▇▇▇▇'▇ 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 49/th/ 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.
41
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
42
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.
43
(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 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
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
44
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(8) 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
45
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.
(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
46
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
47
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
48
(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:
49
(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
50
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
Holder 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
53
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.
54
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
55
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
56
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
57
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
58
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
59
(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
60
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
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 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
65
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
Preferred Securities Guarantee and does not give rise to any breach or
violation of such Trust Agreement or Preferred Securities Guarantee; 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 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; and
(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
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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
(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
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(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 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
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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) 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
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(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, 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
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
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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.
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
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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.
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
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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 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
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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 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
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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 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.
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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 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
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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.
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
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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 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 of 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 Company 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
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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 Company covenants for the benefit of the Holders of each series of
Securities to pay 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.
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
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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 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.
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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 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,
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(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.
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,
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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 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
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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.
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
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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.
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.
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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.
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
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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
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
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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 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
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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, 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.
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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
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, 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
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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 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
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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.
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.
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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 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.
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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 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
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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.
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
100
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
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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 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
101
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 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
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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.
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.
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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, 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
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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, 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 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.
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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 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
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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 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
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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 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
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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 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.
* * *
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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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