EXHIBIT 1.1
The Chubb Corporation
$1,000,000,000
6.375% Directly-Issued Subordinated Capital Securities (DISCS
SM
) due 2067
UNDERWRITING AGREEMENT
New York, New York
March 26, 2007
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Lehman Brothers Inc.
Goldman, Sachs & Co.
Banc of America Securities LLC
BNY Capital Markets, Inc.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Wachovia Capital Markets, LLC
As Representatives of the several Underwriters listed in Schedule I hereto
c/o
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The Chubb Corporation, a New Jersey corporation (the “
Company
”), proposes to sell to the
several underwriters named in Schedule I hereto (the “
Underwriters
”), for whom the Underwriters
named above are acting as Representatives, $1,000,000,000 principal amount of its 6.375%
Directly-Issued Subordinated Capital Securities (DISCS
SM
) due 2067 identified in
Schedule II hereto (the “
Securities
”), to be issued under an indenture dated as of March 29, 2007
(as supplemented, the “
Indenture
”), between the Company and The Bank of New York Trust Company,
N.A., as trustee (the “
Trustee
”). Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used herein are defined in Section 1 hereof.
Section 1. Definitions.
As used herein, the following terms have the following meanings:
“
Act
” means the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“
Agreement
” mean this Underwriting Agreement.
“
Base Prospectus
” means the base prospectus included in the Registration Statement, including
all documents incorporated by reference therein as of the date of such Base Prospectus; and any
reference to any amendment or supplement to such Base Prospectus shall be deemed to refer to and
include any documents filed after the date of such Base Prospectus, under the Exchange Act, and
incorporated by reference in such Base Prospectus.
“
Business Day
” means any day other than a Saturday, a Sunday or a legal holiday or a day on
which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“
Commission
” means the Securities and Exchange Commission.
“
Effective Date
” means each date and time that the Registration Statement became or becomes
effective, or any post-effective amendment thereto became or becomes effective.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“
Execution Time
” means the date and time that this Agreement is executed and delivered
by the parties hereto.
“
Final Prospectus
” means the Base Prospectus and the final prospectus supplement relating to
the Securities in the form first used to confirm sales of the Securities and filed with the
Commission pursuant to Rule 424(b), including the documents incorporated by reference therein as of
the date of such Final Prospectus; and any reference to any amendment or supplement to such Final
Prospectus shall be deemed to refer to and include any documents filed after the date of such Final
Prospectus, under the Exchange Act, and incorporated by reference in such Final Prospectus.
“
Final Term Sheet
” means the final term sheet substantially in the form of Schedule II
hereto.
“
Free Writing Prospectus
” means a free writing prospectus, as defined in Rule 405.
“
Issuer Free Writing Prospectus
” means an issuer free writing prospectus, as defined in
Rule 433.
“
Preliminary Prospectus
” means the Base Prospectus and any preliminary prospectus supplement
to the Base Prospectus used in connection with the offer and sale of the Securities, including the
documents incorporated by reference therein as of the date of such Preliminary Prospectus; and any
reference to any amendment or supplement to such Preliminary Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary Prospectus, under the Exchange
Act, and incorporated by reference in such Preliminary Prospectus.
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“
Registration Statement
” means registration statement no. 333-141561 under the Act prepared by
the Company covering,
inter alia
, the offer and sale of the Securities under this
Agreement, including all exhibits thereto and the documents incorporated by reference in the Base
Prospectus contained in such registration statement and any prospectus supplement relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective Date, and any
post-effective amendments thereto.
“
Rule 158
”, “
Rule 163
”, “
Rule 164
”, “
Rule 172
”, “
Rule 405
”, “
Rule 412
”, “
Rule 415
”, “
Rule
424
”, “
Rule 430B
, “
Rule 433
”, “
Rule 456
” and “
Rule 457
” refer to such rules under the Act.
“
Securities
” means the 6.375% Directly-Issued Subordinated Capital Securities
(DISCS
SM
) due 2067 and identified in Schedule II to this Agreement.
“
Time of Sale
” means 6:00 p.m., New York City time, on March 26, 2007.
“
Time of Sale Information
” means the following information prepared by the Company in
connection with the offering: (1) the Preliminary Prospectus used most recently prior to the
Execution Time and (2) the Final Term Sheet, including all documents (including any Current Report
on Form 8-K) incorporated therein by reference, whether any such incorporated document is filed
before or after the document into which it is incorporated, so long as the incorporated document is
filed before the Time of Sale.
“
Trust Indenture Act
” means the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Section 2. Purchase and Sale.
Subject to the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at 98.907% of the principal amount
thereof, the Securities set forth opposite such Underwriter’s name in Schedule I hereto.
Section 3. Delivery and Payment.
Delivery to the Underwriters of, and payment for, the Securities shall be made at the office
of Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York 10006, at 9:00 a.m.,
New York City time, on March 29, 2007 (the “Closing Date”). The place of closing for the Securities
and the Closing Date may be varied by agreement between the Representatives and the Company.
Delivery of the Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters directly or through the
Representatives of the net purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
It is understood that the Representatives, acting individually and not in a representative
capacity, may (but shall not be obligated to) make payment to the Company on behalf of any other
Underwriter for Securities to be purchased by such Underwriter. Any such payment by the
Representatives shall not relieve any such Underwriter of any of its obligations hereunder.
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The Company shall pay to the Representatives on the Closing Date for the accounts of the
Underwriters any fee, commission or other compensation specified in Schedule I hereto. Such payment
will be made by wire transfer payable in same-day funds to an account specified by the
Representatives.
Section 4. Representations and Warranties of the Company.
The Company represents and warrants, except as otherwise specified, (i) as of the Time of Sale
and (ii) on and as of the Closing Date, that:
(a) Each of the representations and warranties of the Company as set forth in Annex A hereto,
which annex is incorporated by reference into this Section 4 as if fully set forth herein, is true
and correct as if made on each of the dates specified above;
provided
that “Subsidiary” shall be
deemed to include any subsidiaries of the Company that are, on each of the dates specified above,
“significant subsidiaries” of the Company within the meaning of Regulation S-X.
(b) The Commission has not issued a notice objecting to the use of the Registration Statement
or an order preventing or suspending its use or the use of the Time of Sale Information and no
proceedings for that purpose or pursuant to Section 8A of the Act against the Company or related to
the Securities are pending before or, to the knowledge of the Company, threatened by the
Commission.
(c) The documents incorporated by reference in the Base Prospectus, the Preliminary Prospectus
and the Final Prospectus, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Base Prospectus, the Preliminary Prospectus or the Final
Prospectus or any further amendment or supplement thereto, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The foregoing
sentence does not apply to (i) any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by any Underwriter through the Representatives
or their counsel expressly for use in the Base Prospectus, the Preliminary Prospectus or the Final
Prospectus and (ii) any statement in such documents which does not constitute part of the
Registration Statement, Base Prospectus, Preliminary Prospectus or Final Prospectus pursuant to
Rule 412(c) under the Act.
(d) The Registration Statement conforms (and the Preliminary Prospectus and the Final
Prospectus and any further amendments or supplements thereto, when they are filed with the
Commission under Rule 424(b) will conform) in all material respects to the requirements of the Act,
the Exchange Act and the Trust Indenture Act, and (i) the Registration Statement (and any amendment
or supplement thereto) as of each Effective Date and as of the Execution Time did not and will not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not misleading; (ii) on each
Effective Date and on the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act; and (iii) as of its date and on the
Closing Date, the Final Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility (Form T-1)
4
under the Trust Indenture Act of the Trustee, (ii) the information contained in or omitted from the
Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with information furnished in writing to
the Company by the Underwriters through the Representatives or their counsel specifically for
inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), or
(iii) any statement which does not constitute part of the Registration Statement (and any amendment
or supplement thereto) pursuant to Rule 412(c) under the Act.
(e) As of the Time of Sale, the Time of Sale Information does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding
sentence does not apply to statements in or omissions from the Time of Sale Information in
reliance and
in conformity with information furnished in writing to the Company by any Underwriter through
the
Representatives or their counsel specifically for use therein or to any statement which does
not constitute
part of the Time of Sale Information pursuant to Rule 412(c) under the Act.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
Section 5. Covenants of the Company.
The Company covenants and agrees with the several Underwriters as follows:
(a) to cause the Final Prospectus, properly completed, and any supplement thereto to be filed
in a form approved by the Representatives with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing;
(b) to prepare a Final Term Sheet and to file such Final Term Sheet, in a form approved by the
Representatives, in compliance with Rule 433(d) under the Act;
(c) to file promptly with the Commission any amendment to the Registration Statement, or the
Final Prospectus or any supplement to the Final Prospectus that may, in the reasonable judgment of
the Company or the Representatives, be required by the Act or requested by the Commission;
(d) to advise the Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed and becomes automatically effective or
any supplement to the Final Prospectus or any amended Final Prospectus has been filed and to
furnish the Underwriters with copies thereof;
(e) to file promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Final Prospectus and for so long as the delivery of a
Final Prospectus is required in connection with the offering or sale of the Securities (including
in circumstances where such requirement may be satisfied pursuant to Rule 172);
(f) to advise the Representatives, promptly after it receives notice thereof, of the issuance
by the Commission of (i) any notice objecting to the use of the Registration Statement, (ii) any
stop order or any order preventing or suspending the use of the Registration Statement or the Final
Prospectus, (iii) the suspension of the qualification of any of the Securities for offering or sale in any
jurisdiction or the initiation or threatening of any proceeding for any such purpose, or (iv) any
request by the Commission for the amending or supplementing of the Registration Statement or the
Final Prospectus or
5
for additional information, and, in the event of the issuance of any notice objecting to the use of
the Registration Statement, any stop order, any order preventing or suspending the use of the
Registration Statement or any Final Prospectus or suspending any such qualification of the
Securities, to use promptly its best efforts to obtain its withdrawal;
(g) if, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Time of Sale Information would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, the Company
will (i) notify promptly the Representatives so that any use of the Time of Sale Information may
cease until it is amended or supplemented; (ii) amend or supplement the Time of Sale Information to
correct such statement or omission; and (iii) supply any amendment or supplement to the
Underwriters in such quantities as each may reasonably request;
(h) if, at any time when a prospectus relating to the Securities is required to be delivered
under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration Statement, file a new
registration statement or supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder for this offering of the Securities, including in connection
with the use or delivery of the Final Prospectus, the Company promptly will (i) notify the
Representatives of any such event, (ii) prepare and file with the Commission, subject to paragraph
1 of Annex A, an amendment or supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any
amendment to the Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any
supplemented Final Prospectus to the Underwriters in such quantities as each may reasonably
request;
(i) the Company will furnish to the Representatives, without charge, electronic copies of the
Registration Statement (including exhibits thereto) and to each other Underwriter an electronic
copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary
Prospectus and the Final Prospectus and any supplement thereto as the Representative may reasonably
request;
(j) other than the Base Prospectus, any Preliminary Prospectus, the Final Term Sheet, the
Final Prospectus, or any document not constituting a prospectus under Section 2(a)(10)(a) of the
Act or Rule 134, the Company (including its agents and representatives, other than the Underwriters
in their capacity as such) has not made, used, prepared, authorized, approved or referred to and
will not prepare, make, use, authorize, approve or refer to, any “written communication” (as
defined in Rule 405 of the Act) that constitutes an offer to sell or solicitation of an offer to
buy the Securities, unless such written communication is approved in writing in advance by the
Representatives. To the extent any such written communication constitutes an “issuer free writing
prospectus” (as defined in Rule 433 and referred to herein as an “Issuer Free Writing Prospectus”),
such Issuer Free Writing Prospectus does not include any information that conflicts with
information contained in the Registration Statement (including any document that has been
incorporated by reference therein that has not been superseded or modified), complied or will
comply in all material respects with the requirements of Rule 433(c) and, if the filing thereof is
required pursuant to Rule 433, such filing has been or will be made in the manner and within the
time period required by Rule 433(d);
6
(k) prior to filing with the Commission (i) any amendment to the Registration Statement or
supplement to the Final Prospectus or (ii) any Preliminary Prospectus pursuant to Rule 424(b) under
the Act, to furnish a copy thereof to the Underwriters and counsel to the Underwriters; and not to
file any such amendment or supplement that shall be reasonably disapproved by the Representatives
promptly after reasonable notice;
(l) as soon as practicable, to make “generally available to its security holders” an “
earnings
statement
” of the Company and its subsidiaries complying with (which need not be audited) Section
11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company,
Rule 158). The terms “
generally available to its security holders
” and “earnings statement” shall
have the meanings set forth in Rule 158;
(m) to take such action as the Representatives may reasonably request in order to qualify the
Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions as the
Underwriters may reasonably request;
provided
that in no event shall the Company be required to
qualify as a foreign corporation, to file a general consent to service of process in any
jurisdiction or subject itself to taxation in any such jurisdiction if it is not otherwise so
subject;
(n) to pay: (i) the costs incident to the preparation and printing of the Registration
Statement, the Preliminary Prospectus, the Final Prospectus, the Time of Sale Information and any
amendments or supplements thereto; (ii) the costs of distributing the Registration Statement, the
Preliminary Prospectus, the Final Prospectus and the Time of Sale Information and any amendments or
supplements thereto; (iii) any fees and expenses of qualifying the Securities under the securities
laws of the several jurisdictions as provided in Section 5 (m) and of preparing, printing and
distributing a “blue sky memorandum,” if any (including any related fees and expenses of counsel to
the Underwriters); and (iv) all other costs and expenses reasonably incurred by the Company
incident to the performance of the obligations of the Company hereunder; and
(o) to furnish the Representatives with such information and documents as the Underwriters may
reasonably request in connection with the transactions contemplated hereby, and to make reasonably
available to the Underwriters and any accountant, attorney or other advisor retained by the
Underwriters such information that parties would customarily require in connection with a due
diligence investigation conducted in accordance with applicable securities laws and to cause the
Company’s officers, directors, employees and accountants to participate in all such discussions and
to supply all such information reasonably requested by any such Person in connection with such
investigation.
Section 6. Representations, Warranties and Agreements of the Underwriters.
The Underwriters represent, warrant and agree that, except for the information contained in
the Final Term Sheet and any Issuer Free Writing Prospectus approved in writing in advance by the
Representatives pursuant to Section 5(j), they have not made and will not make, unless approved in
writing in advance by the Company, any offer relating to the Securities that would constitute a
“free writing prospectus” (as defined in Rule 405 of under the Act and referred to herein as a
“Free Writing Prospectus”) that would be required to be filed with the Commission.
Section 7. Conditions to the Underwriters’ Obligations.
The obligations of the Underwriters to purchase the Securities shall be subject to the
following conditions:
7
(a) The Final Prospectus and the Final Term Sheet shall have been timely filed with the
Commission; no notice objecting to the use of the Registration Statement or stop order suspending
its effectiveness or order preventing the use of the Time of Sale Information shall have been
issued and no proceedings for that purpose or pursuant to Section 8A of the Act against the Company
or related to the offer and sale of the Securities are pending before or shall have been initiated
or threatened by the Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement, the Final Prospectus or the Time of Sale Information or
otherwise shall have been complied with.
(b) (1) Trading generally shall not have been suspended or materially limited on the New York
Stock Exchange, (2) trading of any securities of the Company shall not have been materially
suspended or limited on the New York Stock Exchange, (3) a general moratorium on commercial banking
activities in New York shall not have been declared by either Federal or New York State
authorities, and (4) there shall not have occurred a material adverse change in the financial
markets, any outbreak or escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war or other calamity or crisis, if the effect of
any such event specified in this clause (4) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offer and sale of the Securities or the delivery
of the Securities on the terms and in the manner contemplated herein.
(c) The representations and warranties of the Company contained herein shall be true and
correct in all material respects on and as of the Execution Time and the Closing Date, and the
Company shall have performed in all material respects all covenants and agreements contained herein
to be performed on their part at or prior to the Execution Time and the Closing Date, as
applicable.
(d) The Company shall have furnished to the Underwriters a certificate, dated the Closing
Date, of the Chief Executive Officer and the Treasurer satisfactory to the Underwriters stating
that: (1) the representations and warranties of the Company contained or incorporated by reference
in Section 4 are true and correct in all material respects on and as of the Closing Date and the
Company has performed in all material respects all covenants and agreements contained herein to be
performed on its part at or prior to such Closing Date; (2) no order suspending the effectiveness
of the Registration Statement or prohibiting the offer or sale of the Securities is in effect, and
no proceedings for such purpose are pending before or, to the knowledge of such officers,
threatened by the Commission; and (3) since the date of the most recent financial statements
included or incorporated by reference in the Time of Sale Information and the Final Prospectus
(exclusive of any supplement thereto), there has been no material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Time of Sale Information and the Final
Prospectus.
(e) On the date of this Agreement and on the Closing Date, the Underwriters shall have
received a letter addressed to the Representatives and dated such respective dates, in form and
substance satisfactory to the Representatives, of Ernst & Young LLP, the independent registered
public accounting firm of the Company, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements
and schedules and certain financial information contained in or incorporated by reference in the
Time of Sale Information and the Final Prospectus;
provided
that the letter delivered on such
Closing Date shall use a “cut-off” date no more than three business days prior to such Closing
Date.
(f) (1) W. Andrew Macan, Corporate Counsel to the Company shall have furnished to the
Underwriters his opinion, addressed to the Representatives and dated the Closing Date, in form
and substance reasonably satisfactory to the Representatives, substantially in the form attached
as Exhibit A;
8
(2) Paul, Weiss, Rifkind, Wharton & Garrison, LLP, counsel for the Company shall have furnished to
the Underwriters its opinion, addressed to the Representatives and dated the Closing Date, in form
and substance reasonably satisfactory to the Representatives, substantially in the form attached as
Exhibit B;
provided
that insofar as such opinion involves factual matters, such counsel may rely,
to the extent such counsel deems proper, upon certificates of officers of the Company, its
subsidiaries and of public officials; and (3) Debevoise & Plimpton LLP, special tax counsel to the
Company, shall have furnished to the Underwriters its opinion, addressed to the Representatives and
dated the Closing Date, in form and substance reasonably satisfactory to the Representatives,
substantially in the form attached as Exhibit C.
(g) Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, shall have furnished
to the Underwriters its opinion, addressed to the Representatives and dated the Closing Date, in
form and substance satisfactory to the Representatives.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that does not indicate an
improvement, in the rating accorded any of the Company’s securities by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Act.
(i) On or prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the Representatives
may reasonably request.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 7 shall be delivered at the office of
Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, at One Liberty Plaza, New York,
NY 10006, on the Closing Date.
Section 8. Indemnification.
(a) The Company will indemnify and hold harmless each Underwriter, the partners, directors and
officers of each Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters or any of them may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Final Prospectus, or any amendment or supplement thereto, or any
related Preliminary Prospectus or preliminary prospectus supplement, or the Time of Sale
Information, any Issuer Free Writing Prospectus, any company information that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Act, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will reimburse each such
indemnified party for any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such losses, claims, damages, liabilities or action
as such expenses are incurred;
provided
that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an
9
untrue statement or alleged untrue statement or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter through the Representatives specifically for use therein.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the Company within the
meaning of Section 15 of the Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, the Final
Prospectus or any amendment or supplement thereto, or any related Preliminary Prospectus or
preliminary prospectus supplement, or the Time of Sale Information, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this section of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve the indemnifying party from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
,
that such counsel shall be reasonably satisfactory to the indemnified party; and
provided further
that the indemnifying party will be entitled to participate in and, to the extent that it shall
elect, jointly with all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof. Notwithstanding the indemnifying party’s election to appoint counsel
to represent the indemnified party in an action and/or to assume the defense thereof, the
indemnified party shall have the right to employ separate counsel (including local counsel) (it
being understood, however, that the indemnifying party shall not be liable for the expenses of more
than one separate counsel (together with local counsel)), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. No indemnifying party shall be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the
indemnified parties,
10
settle or compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 8 or Section 9 (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
Section 9. Contribution.
(a) If the indemnification provided for in Section 8 is unavailable to or insufficient to hold
harmless an indemnified party under Section 8 (a) or Section 8 (b), then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 8 (a) and Section 8 (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportions as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or liabilities as well
as any relevant equitable considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the offer and sale of the Securities
shall be deemed to be in the same proportions as the aggregate principal amount of the Securities
less the fee paid to the Underwriters on the one hand and the fee paid to the Underwriters on the
other hand bear to the aggregate principal amount of the Securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other hand and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (a) were determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable considerations
referred to above in this subsection (a). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (a) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (a), the Underwriters shall not be
required to contribute any amount in excess of the amount by which the fee received by it pursuant
to Schedule I exceeds the amount of any damages which the Underwriters have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(b) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of any Underwriter and to each person, if any, who controls such Underwriter
within the meaning of the Act; and the obligations of such Underwriter under this Section 9 shall
be in addition to any liability which such Underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each officer of the Company who
signed the Registration Statement and to each person, if any, who controls the Company within the
meaning of the Act.
11
(c) The indemnity and contribution provisions contained in Section 8 and this Section 9 and
the representations, warranties and other statements of the Company contained in this Agreement
shall remain in full force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any person controlling any Underwriter,
or the Company, its officers or director or any controlling person of the Company, and the
completion of the offer, sale and delivery of the Securities.
Section 10. Default by an Underwriter.
(a) If any one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to
purchase shall constitute a default in the performance of its or their obligations under this
Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in the respective
proportions
which the principal amount of Securities set forth opposite their names in Schedule I hereto
bears to the
aggregate principal amount of Securities set forth opposite the names of all the remaining
Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided,
however, that in the event that the aggregate principal amount of Securities which the
defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal
amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the
right to
purchase all, but (unless a substitute purchaser is obtained pursuant to clause (b) below)
shall not be under
any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do
not purchase
all the Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the
Company.
(b) In the event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal
amount of Securities set forth in Schedule I hereto and the nondefaulting Underwriters do not
purchase all
the Securities that the defaulting Underwriter failed to purchase, the Representatives may in
their
discretion arrange for another party or other parties to purchase such otherwise unpurchased
Securities on
the terms contained herein. If within thirty-six hours after such default by any Underwriter
the
Representatives do not arrange for the purchase of such Securities, then the Company shall be
entitled to a
further period of thirty-six hours within which to procure another party or other parties to
whom the
Representatives do not reasonably object to purchase such Securities on such terms. The term
“Underwriter” as used in this Agreement shall include any person substituted under this
Section with like
effect as if such person had originally been a party to this Agreement.
(c) In the event of a default by any Underwriter as set forth in this Section 10, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as the
Representative shall
determine in order that the required changes in the Registration Statement and the Final
Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this Agreement shall
relieve
any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for
damages occasioned by its default hereunder.
Section 11. Termination.
This Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment for the
Securities, if at any time prior to such delivery and payment (i) trading in the Company’s common
stock shall have been suspended by the Commission or trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum prices shall have been
established on such exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii)
12
there shall have occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering and sale or delivery of the Securities as contemplated by
the Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement
thereto).
Section 12. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission to Citigroup Global Markets, Inc., 388 Greenwich Street, New York, NY, 10013,
Attention: General Counsel; and
(b) if to the Company, shall be delivered or sent by mail, telex or facsimile transmission to
The Chubb Corporation, 15 Mountain View Road, Warren, New Jersey 07061-1615, Attention: Corporate
Secretary (Tel: (908) 903-2000).
Any such statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
Section 13. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon each party hereto and its
respective successors. This Agreement and the terms and provisions hereof are for the sole benefit
of only those persons, except that (x) the representations, warranties, indemnities and agreements
of the Company contained in this Agreement shall also be deemed to be for the benefit of each
Underwriter and the person or persons, if any, who control such Underwriter within the meaning of
Section 15 of the Act and (y) the indemnity agreement of the several Underwriters contained in
Section 8 (b) of this Agreement shall be deemed to be for the benefit of the Company’s directors and
officers who sign the Registration Statement, if any, and any person controlling the Company within
the meaning of Section 15 of the Act and their respective heirs, executors, administrators,
personal representatives, successors and assigns; provided that no purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign merely by reason of such
purchase. Nothing contained in this Agreement is intended or shall be construed to give any person,
other than the persons referred to herein, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein.
Section 14. No fiduciary duty.
The Company hereby acknowledges that (i) the offering pursuant to this Agreement is an arm’s
length commercial transaction between the Company, on the one hand, and the Underwriters and any
affiliate through which it may be acting, on the other, (ii) the Underwriters are acting as
principal and not as an agent or fiduciary of the Company and (iii) the Company’s engagement of the
Underwriters in connection with the offering and process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore, the Company agrees that it is
solely responsible for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company on related or
other matters). The Company agrees that it will not claim that the Underwriters have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
13
Section 15. Survival.
The respective indemnities, representations, warranties and agreements of the Company and the
several Underwriters contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the offer, sale and delivery of the Securities and shall
remain in full force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
Section 16. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of New York,
without regard to conflicts of laws principles.
Section 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
Section 18. Headings.
The headings herein are inserted for convenience of reference only and are not intended to be
part of, or to affect the meaning or interpretation of, this Agreement.
Section 19. Severability.
If any provision of this Agreement shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or public policy or for
any other reason, then, to the extent permitted by law, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or unenforceable in any other
case, circumstance or jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 20. Amendments.
This Agreement may be amended by an instrument in writing signed by the parties hereto.
Section 21. Successors and Assigns.
The rights and obligations of the Company hereunder may not be assigned or delegated to any
other Person without the prior written consent of each Underwriter. The rights and obligations of
each Underwriter hereunder may not be assigned or delegated to any other Person (other than an
affiliate of such Underwriter) without the prior written consent of the Company.
If the foregoing correctly sets forth the agreement by and between the Company and the
Underwriters, please indicate your acceptance in the space provided for that purpose below.
[SIGNATURES ON THE FOLLOWING PAGE]
14
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Very truly yours,
THE CHUBB CORPORATION
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By:
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/s/ Michael O’Reilly
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Name:
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Michael O’Reilly
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Title:
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Vice Chairman and Chief Financial Officer
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15
Confirmed And Accepted:
CITIGROUP GLOBAL MARKETS INC.
CREDIT SUISSE SECURITIES (USA) LLC
LEHMAN BROTHERS INC.
GOLDMAN, SACHS & CO.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
WACHOVIA CAPITAL MARKETS, LLC
By: CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Chandru M. Harjani
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Name:
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Chandru M. Harjani
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Title:
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Vice President
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For themselves and the other several Underwriters named in Schedule I to the foregoing Agreement
16
SCHEDULE I
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Principal Amount of
|
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Percentage of Total
|
|
Underwriters
|
|
Securities
|
|
Underwriting Fees
|
|
Citigroup Global Markets Inc.
|
|
$
|
335,000,000
|
|
|
|
33.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Credit Suisse Securities (USA) LLC
|
|
$
|
235,000,000
|
|
|
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23.5
|
%
|
|
|
|
|
|
|
|
|
|
|
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Lehman Brothers Inc.
|
|
$
|
235,000,000
|
|
|
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23.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Goldman, Sachs & Co.
|
|
$
|
70,000,000
|
|
|
|
7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Banc of America Securities LLC
|
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$
|
25,000,000
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|
|
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2.5
|
%
|
|
|
|
|
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|
|
|
|
|
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BNY Capital Markets, Inc.
|
|
$
|
25,000,000
|
|
|
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2.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
J.P. Morgan Securities Inc.
|
|
$
|
25,000,000
|
|
|
|
2.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
$
|
25,000,000
|
|
|
|
2.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Wachovia Capital Markets, LLC
|
|
$
|
25,000,000
|
|
|
|
2.5
|
%
|
|
|
|
|
|
Total
|
|
$
|
1,000,000,000
|
|
|
|
100.00
|
%
|
17
SCHEDULE II
Filed Pursuant to Rule 433
Registration No. 333-141561
The Chubb Corporation
6.375% Directly-Issued Subordinated Capital Securities (DISCS
SM
) due 2067
Final Term Sheet
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Issuer:
|
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The Chubb Corporation
|
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Title of Security:
|
|
6.375% Directly-Issued Subordinated
Capital Securities (DISCS
(SM)
)
due 2067 (the “Debentures”)
|
|
|
|
|
|
Aggregate Principal Amount:
|
|
$1,000,000,000
|
|
|
|
|
|
Trade Date:
|
|
March 26, 2007
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|
|
|
|
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Settlement Date:
|
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March 29, 2007 (T + 3)
|
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|
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Scheduled Maturity Date:
|
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April 15, 2037, or if such date is not a
business day, the following business day
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|
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Final Maturity Date:
|
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March 29, 2067, or if such date is not a
business day, the following business day
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Interest Rates:
|
|
6.375% per annum to but excluding April
15, 2017, and three-month LIBOR + 225 bp
per annum from and including April 15,
2017 until the Final Maturity Date, unless
redeemed or repaid earlier
|
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|
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Interest Payment Dates:
|
|
Each October 15 and April 15 until April
15, 2017, and thereafter each July 15,
October 15, January 15, and April 15 until
the Final Maturity Date, unless redeemed
or repaid earlier
|
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First Interest Payment Date:
|
|
October 15, 2007
|
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|
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Benchmark:
|
|
UST 4.625% due February 15, 2017
|
|
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Benchmark Yield:
|
|
4.607%
|
|
|
|
|
|
Reoffer Spread:
|
|
+178bp
|
|
|
|
|
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Reoffer Yield:
|
|
6.387%
|
|
|
|
|
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Price to Public:
|
|
99.907%
|
|
|
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|
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Optional Redemption:
|
|
Subject to restrictions under the
Replacement Capital Covenant, redeemable
in whole or in part at the option of the
Issuer at any time at the following
applicable redemption price:
|
18
|
|
•
|
|
in the case of any redemption on or after April 15, 2017, 100%
of the principal amount of the Debentures being redeemed or
|
|
|
|
|
•
|
|
in the case of any redemption prior to April 15, 2017, the
greater of (i) 100% of the principal amount of the Debentures
being redeemed and (ii) the present value of a principal payment
on April 15, 2017 and scheduled payments of interest that would
have accrued from the redemption date to April 15, 2017 on the
Debentures being redeemed, discounted to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at a discount rate equal to the treasury rate plus
the Applicable Spread, in each case plus accrued and unpaid
interest to the redemption date
|
Redemption for Tax Event or Rating Agency Event:
Subject to restrictions under the
Replacement Capital Covenant, redeemable in
whole but not in part at the option of the
Issuer within 90 days after the occurrence
of a tax event or a rating agency event at
the following applicable redemption price:
|
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•
|
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in the case of any redemption on or after
April 15, 2017, 100% of the principal amount
of the Debentures being redeemed or
|
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|
|
|
•
|
|
in the case of any redemption prior to
April 15, 2017, the greater of (i) 100% of
the principal amount of the Debentures being
redeemed and (ii) the present value of a
principal payment on April 15, 2017 and
scheduled payments of interest that would
have accrued from the redemption date to
April 15, 2017 on the Debentures being
redeemed, discounted to the redemption date
on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at
a discount rate equal to the treasury rate
plus the Applicable Spread, in each case
plus accrued and unpaid interest to the
redemption date
|
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|
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Applicable Spread:
|
|
+50 bp if the redemption is within 90 days
after the occurrence of a tax event or a
rating agency event; and +25 bp in other
cases
|
|
|
|
|
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Replacement Capital
Covenant:
|
|
A replacement capital covenant will apply
until March 29, 2047
|
|
|
|
|
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CUSIP:
|
|
171232AP6
|
|
|
|
|
|
Joint Book-Running Manager
and Sole Structuring
Advisor:
|
|
Citigroup Global Markets Inc.
|
|
|
|
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|
Joint Book-Running Managers:
|
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Credit Suisse Securities (USA) LLC
|
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|
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Lehman Brothers Inc.
|
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|
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Goldman, Sachs & Co.
|
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|
|
|
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Co-Managers:
|
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Banc of America Securities LLC
|
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|
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BNY Capital Markets, Inc.
|
|
|
|
J.P. Morgan Securities Inc.
|
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|
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Merrill Lynch, Pierce, Fenner
& Smith Incorporated
|
|
|
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Wachovia Capital Markets, LLC
|
19
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling:
|
|
|
|
|
Citigroup Global Markets Inc.
|
|
(877) 858-5407
|
|
|
|
Credit Suisse Securities (USA) LLC
|
|
(800) 221-1037
|
|
|
|
Lehman Brothers Inc.
|
|
(888) 603-5847
|
|
|
|
Goldman, Sachs & Co.
|
|
(866) 471-2526
|
20
ANNEX A
|
1.
|
|
The Company meets the requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission an automatic shelf registration statement, as defined in Rule 405, on
Form S-3 (file number 333-141561), including a related Base Prospectus, for registration under
the Act of the offering and sale of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, became effective upon filing. The Company
filed with the Commission, pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement relating to the Securities
in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all
information required by the Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
|
|
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|
2.
|
|
(i) At the time of filing the Registration Statement and (ii) at the Execution Time (with
such date being used as the determination date for purposes of this clause (ii)), the Company
was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The
Company agrees to pay the fees required by the Commission relating to the Securities within the
time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
|
|
|
|
3.
|
|
(i) At the earliest time after the filing of the Registration Statement that the Company or
another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2)) of
the Securities and (ii) as of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the Company was not and is not an
“ineligible issuer” (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an
“ineligible issuer.”
|
|
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|
4.
|
|
Other than the Base Prospectus, any Preliminary Prospectus, the Final Term Sheet, the Final
Prospectus, or any document not constituting a prospectus under Section 2(a)(10)(a) of the Act
or Rule 134, the Company (including its agents and representatives, other than the Underwriters
in their capacity as such) has not made, used, prepared, authorized, approved or referred to
and will not prepare, make, use, authorize, approve or refer to, any “written communication”
(as defined in Rule 405) that constitutes an offer to sell or solicitation of an offer to buy
the Securities, unless such written communication is approved in writing in advance by the
Underwriters. To the extent any such written communication constitutes an “issuer free writing
prospectus” (as defined in Rule 433 and referred to herein as an “Issuer Free Writing
Prospectus”), such Issuer Free Writing Prospectus does not include any information that
conflicts with information contained in the Registration Statement (including any
document that has been incorporated by reference therein that has not been superseded or
modified), complied or will comply in all material respects with the requirements of Rule
433(c) and, if the filing thereof is required pursuant to Rule 433, such filing has been or
will be made in the manner and within the time period required by Rule 433(d).
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5.
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The Company and each of its Subsidiaries have been duly incorporated or formed, as
applicable, and are validly existing in good standing under the laws of the jurisdiction in
which they are chartered or
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A-1
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organized with full corporate, limited liability or partnership power, as the case may be, and
authority to own or lease, as the case may be, and to operate their properties and conduct
their business as described in the Time of Sale Information and the Final Prospectus and are
duly qualified to do business as foreign corporations and are in good standing under the laws
of each jurisdiction in which the conduct of their business or their ownership or leasing of
property requires such qualification, except to the extent the failure to be so qualified or in
good standing would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its subsidiaries
taken as a whole (a “
Material Adverse Effect
”).
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6.
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Since the respective dates as of which information is given in the Registration Statement,
the Time of Sale Information and the Final Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its subsidiaries, other than those
in the ordinary course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular dividends on the
Company’s common stock in amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made by the Company on any of
its capital stock.
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7.
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All the outstanding shares of capital stock of each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth
in the Time of Sale Information and the Final Prospectus, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company, either directly or through wholly owned
subsidiaries, free and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances, except in each case as would not have a Material
Adverse Effect.
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8.
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The Company’s authorized equity capitalization is as set forth in the Time of Sale
Information and the Final Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Time of Sale Information and the Final
Prospectus; the outstanding shares of the Company’s common stock have been duly and validly
authorized and issued and are fully paid and nonassessable; and the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive or other rights to
purchase the Securities; and, except as set forth in the Time of Sale Information and the Final
Prospectus, no options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding.
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9.
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The Indenture has been duly authorized and has been duly qualified under the Trust Indenture
Act, and, when it is executed and delivered by the Company, will constitute a valid and binding
instrument enforceable against the Company in accordance with its terms (subject to applicable
bankruptcy, insolvency and similar laws affecting creditors rights generally and to general
principles of equity); and the Securities have been duly authorized and, when executed and
delivered by the Company, will constitute valid and binding obligations of the Company entitled
to the
benefits of the Indenture (subject to applicable bankruptcy, insolvency and similar laws
affecting creditors rights generally and to general principles of equity).
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10.
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There is no franchise, contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required; and the statements in the Time of Sale Information and
the Final Prospectus under the headings “Description of Junior Subordinated Debt Securities”,
“Description of the
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A-2
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Debentures”, “Description of the Replacement Capital Covenant”, “Material United States Federal
Income Tax Considerations”, “Certain ERISA Considerations” and the statements in the Time of
Sale Information and the Final Prospectus incorporated by reference from the Company’s Annual
Report on Form 10-K for the year ended December 31, 2006 under the headings: Item 1.
“Business—Regulation and Premium Rates” and Item 3. “Legal Proceedings” insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements, documents or proceedings.
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11.
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The Company is not, and after giving effect to the offer and sale of the Securities as
described in the Time of Sale Information and the Final Prospectus will not be, an “investment
company” as defined in the Investment Company Act of 1940, as amended.
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12.
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No consent, approval, authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions contemplated in this Agreement,
except such as have been or will have been done or obtained prior to the Closing Date under the
Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the offer and sale of the Securities by the
Underwriters in the manner contemplated herein and in the Time of Sale Information and the
Final Prospectus.
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13.
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Neither the offer and sale of the Securities nor the compliance of the Company with the
terms of the Securities nor the consummation of any other of the transactions related to the
offer and sale of the Securities nor the fulfillment of the terms of this Agreement will
conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries pursuant to (i) the
charter or by-laws of the Company or any of its Subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its Subsidiaries
is a party or bound or to which its or their property is subject or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company or any of its
Subsidiaries of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its Subsidiaries
or any of its or their properties, except in the case of clauses (ii) and (iii) as would not
reasonably be expected to have a Material Adverse Effect;
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14.
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No holders of securities of the Company have rights to the registration of such securities
under the Registration Statement;
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15.
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The consolidated historical financial statements and schedules of the Company and its
consolidated subsidiaries included in the Time of Sale Information, the Final Prospectus and
the Registration Statement, present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted therein); and the
statutory financial statements
of the Company’s subsidiaries that are insurance companies, from which certain ratios and other
statistical data filed or incorporated by reference as part of the Time of Sale Information,
the Final Prospectus and the Registration Statement have been derived have for each relevant
period been prepared in all material respects in conformity with statutory accounting practices
required or permitted by the National Association of Insurance Commissioners and by the
insurance laws of their respective states of domicile, and the rules and regulations
promulgated thereunder, and such statutory accounting practices have been applied on a
consistent basis throughout the periods involved, except as may otherwise be indicated therein
or in the notes thereto;
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A-3
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16.
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No action, suit or proceeding by or before any court or governmental agency, authority
(including proceedings of any insurance regulatory authority) or body or any arbitrator
involving the Company or any of its subsidiaries or its or their property is pending or, to the
best knowledge of the Company, threatened that (i) would reasonably be expected to have a
material adverse effect on the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Time of Sale Information and the
Final Prospectus (exclusive of any supplement thereto after the date of the Time of Sale
Information or the Final Prospectus, as the case may be).
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17.
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Neither the Company nor any Subsidiary is in violation or default of (i) any provision of
its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or such Subsidiary or any of its properties, as applicable, except in the case
of clauses (ii) and (iii) for any violations or defaults which would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
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18.
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Ernst & Young LLP, who have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Time of Sale Information and the Final
Prospectus, is an independent registered public accounting firm with respect to the Company
within the meaning of the Act and the applicable published rules and regulations thereunder.
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19.
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No Subsidiary of the Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such Subsidiary’s capital
stock, from repaying to the Company any loans or advances to such Subsidiary from the Company
or from transferring any of such Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company, except as described in or contemplated by the Time of Sale
Information and the Final Prospectus.
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20.
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The Company and each of its Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
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21.
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The Company and its Subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign regulatory authorities
(including any insurance regulatory authority) necessary to conduct their respective businesses
as presently conducted (except as would not reasonably be
expected to have a Material Adverse Effect), and neither the Company nor any such Subsidiary
has received any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, would reasonably be
expected to have a Material Adverse Effect, except as set forth in or contemplated in the Time
of Sale Information and the Final Prospectus (exclusive of any supplement thereto).
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22.
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The Company has not taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under the Exchange Act
or otherwise,
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A-4
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stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
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23.
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Except as disclosed in the Time of Sale Information, the Final Prospectus and the
Registration Statement, and other than (a) Citigroup Global Markets Inc. and Goldman, Sachs &
Co.’s respective roles, each as a remarketing agent, in connection with the remarketing of
$460,000,000 in aggregate principal amount of the Company’s 5.472% Senior Notes due 2008, (b)
Citigroup Global Markets Inc. and Goldman, Sachs & Co.’s respective roles, each as a
remarketing agent, in connection with the remarketing of $599,532,375 in aggregate principal
amount of the Company’s 4.00% Senior Notes due 2007, (c) the Company’s $500 million five-year
revolving credit agreement with a syndicate of financial institutions, including affiliates of
Citigroup Global Markets Inc., Wachovia Capital Markets LLC, Banc of America Securities LLC and
J.P. Morgan Securities Inc. that acted as lenders, (d) the involvement of Goldman, Sachs & Co.
in the Company’s investment in Allied World Assurance Holdings Limited, (e) the involvement of
Credit Suisse Securities (USA) LLC, BNY Capital Markets, Inc. or their affiliates in the
Company’s share repurchase program, (f) the involvement of Lehman Brothers Inc. or its
affiliates in private equity transactions with the Company, (g) the involvement of J.P. Morgan
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated or their affiliates in the
investment business of the Company, (h) the involvement of Merrill Lynch, Pierce, Fenner &
Smith or its affiliates with the administration of the Company’s equity plans, (i) the
involvement of affiliates of BNY Capital Markets, Inc. as trustee under several of the
Company’s indentures for its debt securities and (j) Mr. Finnegan’s membership of the board of
directors of Merrill Lynch, Pierce, Fenner & Smith, the Company does not have any material
lending or other material relationship with any bank or lending affiliate of any Underwriter.
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A-5
Exhibit A
Opinion of Corporate Counsel to the Company pursuant to Section 4(f)
(i) The Company is validly existing and in good standing under the laws of the State of New
Jersey and has all necessary corporate power and authority to own and hold its properties and
conduct its business as described in the Time of Sale Information and the Final Prospectus;
(ii) The Securities and the Indenture have each been duly authorized by the Company;
(iii) The Underwriting Agreement has been duly authorized, executed and delivered by the
Company;
(iv) Neither the offer and sale of the Securities, the compliance by the Company with all of
the provisions of the Underwriting Agreement nor the performance by the Company of its obligations
thereunder will (A) result in a violation of the certificate of incorporation or the by-laws of the
Company, (B) breach or result in a default under any agreement, indenture or instrument identified
in the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 or (C) violate
Applicable Law or any judgment, order or decree known to me of any court or arbitrator having
jurisdiction over the Company, except, with respect to clauses (B) and (C) above, in any such
instance or instances in which the breach or violation would not have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole (for purposes of this opinion letter, the term
“Applicable Law” means those laws, rules and regulations of the State of New Jersey or the federal
laws of the United States of America, in each case which in my experience are normally applicable
to the transactions of the type contemplated by the Underwriting Agreement);
(v) No consent, approval, authorization or order of, or filing, registration or qualification
with, any Governmental Authority, which has not been obtained, taken or made (other than as
required by any state securities laws, as to which I express no opinion), is required under any
Applicable Law or under any judgment, order or decree known to me of any court or arbitrator having
jurisdiction over the Company for the offer and sale of the Securities or the performance by the
Company of its obligations under the Underwriting Agreement (for purposes of this opinion, the term
“Governmental Authority” means any executive, legislative, judicial, administrative or regulatory
body of the State of New Jersey or the United States of America); and
(vi) To my knowledge, and other than as set forth in the Time of Sale Information, the Final
Prospectus and the Registration Statement (including documents incorporated by reference in any of
the foregoing), there are no legal proceedings pending or overtly threatened against the Company or
any of its subsidiaries which, in my professional judgment, will have a material adverse effect on
the consolidated financial position, stockholders’ equity or results of operations of the Company
and its subsidiaries.
Exh. A-1
Exhibit B
Opinion of counsel for the Company pursuant to Section 4(f)
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1.
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The Underwriting Agreement has been duly and validly executed and delivered by the Company
under the laws of the State of New York.
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2.
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The Indenture is qualified under the Trust Indenture Act of 1939, as amended, and is a valid
and legally binding obligation of the Company, enforceable against the Company in accordance
with its terms, except that the enforceability of the Indenture may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors’ rights generally and subject to general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law).
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3.
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The Securities are valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance with their terms,
except that the enforceability of the Securities may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally and subject to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
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4.
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The statements in the Time of Sale Information and the Prospectus under the captions
“Description of the Junior Subordinated Debt Securities” and “Description of the Debentures”
insofar as such statements purport to summarize certain provisions of the Securities and the
Indenture, provide a fair summary of such provisions. The statements in the Time of Sale
Information and the Prospectus under the caption “Certain ERISA Considerations,” to the extent
that they constitute summaries of United States federal law or regulation or legal
conclusions, have been reviewed by such counsel and fairly summarize the matters described
under that heading in all material respects.
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5.
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The Company is not and, after giving effect to the sale of the Securities and the
application of the proceeds thereof as described in the Time of Sale Information and the
Prospectus under the heading “Use of Proceeds,” will not be required to be registered as an
investment company under the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission promulgated thereunder.
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6.
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Such counsel have been advised orally by the staff of the Commission that no notice
objecting to the use of the Registration Statement and no stop order suspending its
effectiveness have been issued and to such counsel’s knowledge no proceedings for that
purpose have been initiated or are pending or are threatened by the Commission. To such
counsel’s knowledge, no order directed to any document incorporated by reference in the
Registration Statement, the Time of Sale Information or the Prospectus has been issued by
the Commission and remains in effect, and no proceeding for that purpose has been
instituted or threatened by the Commission.
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7.
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The Registration Statement and the Prospectus, each as of the Execution Time, appear on
their face to be appropriately responsive in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (other than Regulation S-T) except for the financial statements,
financial statement schedules and other financial data included or incorporated by
reference in or omitted from either of them and the Form T-1, as to which such counsel
express no view; and each document filed under the Exchange Act, and incorporated by
reference in the Registration Statement and the
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Exh. B-1
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Prospectus (except for financial statements, financial statement schedules and other
financial data included in either of them, as to which such counsel express no view),
appears on its face to be appropriately responsive in all material respects when so filed
to the requirements of the Exchange Act and the rules and regulations under the Exchange
Act, other than Regulation S-T.
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8.
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No information has come to such counsel’s attention that causes such counsel to believe
that the Registration Statement (except for the financial statements, financial statement
schedules and other financial data included or incorporated by reference in or omitted from
the Registration Statement and the Form T-1, as to which such counsel express no view), on
the Effective Date, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading.
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9.
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No information has come to such counsel’s attention that causes such counsel to believe
that the Time of Sale Information (except for the financial statements, financial statement
schedules and other financial data included or incorporated by reference in or omitted from
the Time of Sale Information, as to which such counsel express no view), as of the Time of
Sale, contained an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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10.
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No information has come to such counsel’s attention that causes such counsel to believe
that the Prospectus (except for the financial statements, financial statement schedules and
other financial data included or incorporated by reference in or omitted from the
Prospectus, as to which such counsel express no view), as of the date thereof or hereof,
contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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Exh. B-2
Exhibit C
Opinion of special tax counsel for the Company pursuant to Section 4(f)
Such counsel are of the opinion that the statements in the discussion under the heading
“Material United States Federal Income Tax Considerations” in the Prospectus Supplement, to the
extent they constitute matters of United States federal income tax law or legal conclusions with
respect thereto, are correct in all material respects.
Exh. C-1
EXHIBIT 4.1
THE CHUBB CORPORATION
to
THE BANK OF NEW YORK TRUST COMPANY, N.A.
Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of March 29, 2007
TABLE OF CONTENTS
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Page
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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Section 101
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Definitions.
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6
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Section 102
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Compliance Certificate and Opinions.
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13
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Section 103
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Forms of Documents Delivered to Trustee.
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13
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Section 104
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Acts of Holders.
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14
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Section 105
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Notices, Etc. to Trustee and Company.
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15
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Section 106
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Notice to Holders; Waiver.
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16
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Section 107
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Conflict with Trust Indenture Act.
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16
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Section 108
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Effect of Headings and Table of Contents.
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16
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Section 109
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Successors and Assigns.
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16
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Section 110
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Separability Clause.
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16
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Section 111
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Benefits of Indenture.
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17
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Section 112
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Governing Law.
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17
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Section 113
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Non-Business Days.
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17
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Section 114
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Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability.
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17
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ARTICLE TWO
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SECURITY FORMS
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Section 201
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Forms Generally.
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17
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Section 202
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Form of Face of Security.
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18
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Section 203
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Form of Reverse of Security.
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21
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Section 204
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Additional Provisions Regarding Global Securities.
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23
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Section 205
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Form of Trustee’s Certificate of Authentication.
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24
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ARTICLE THREE
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THE SECURITIES
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Section 301
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Title and Terms.
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24
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Section 302
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Denominations.
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27
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Section 303
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Execution, Authentication, Delivery and Dating.
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27
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Section 304
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Temporary Securities.
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29
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Section 305
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Registration, Transfer and Exchange.
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29
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Section 306
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Mutilated, Destroyed, Lost and Stolen Securities.
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31
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Section 307
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Payment of Interest; Interest Rights Preserved.
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32
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Section 308
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Persons Deemed Owners.
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33
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Section 309
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Cancellation.
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33
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Section 310
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Computation of Interest.
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34
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Section 311
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Deferrals of Interest Payment Dates.
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34
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Section 312
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Agreed Tax Treatment.
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35
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Section 313
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CUSIP Numbers.
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35
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i
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Page
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ARTICLE FOUR
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SATISFACTION AND DISCHARGE
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Section 401
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Satisfaction and Discharge of Indenture.
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36
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Section 402
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Application of Trust Money.
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37
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Section 403
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Satisfaction, Discharge and Defeasance of Securities of Any Series.
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37
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ARTICLE FIVE
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REMEDIES
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Section 501
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|
Events of Default.
|
|
|
39
|
|
|
Section 502
|
|
Acceleration of Maturity; Rescission and Annulment.
|
|
|
40
|
|
|
Section 503
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
|
|
42
|
|
|
Section 504
|
|
Trustee May File Proofs of Claim.
|
|
|
43
|
|
|
Section 505
|
|
Trustee May Enforce Claim Without Possession of Securities.
|
|
|
44
|
|
|
Section 506
|
|
Application of Money Collected.
|
|
|
44
|
|
|
Section 507
|
|
Limitation on Suits.
|
|
|
44
|
|
|
Section 508
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest.
|
|
|
45
|
|
|
Section 509
|
|
Restoration of Rights and Remedies.
|
|
|
45
|
|
|
Section 510
|
|
Rights and Remedies Cumulative.
|
|
|
46
|
|
|
Section 511
|
|
Delay or Omission Not Waiver.
|
|
|
46
|
|
|
Section 512
|
|
Control by Holders.
|
|
|
46
|
|
|
Section 513
|
|
Waiver of Past Defaults.
|
|
|
47
|
|
|
Section 514
|
|
Undertaking for Costs.
|
|
|
47
|
|
|
Section 515
|
|
Waiver of Stay or Extension Laws.
|
|
|
48
|
|
|
|
|
|
|
|
|
|
ARTICLE SIX
|
THE TRUSTEE
|
|
|
|
|
|
|
|
|
|
Section 601
|
|
Certain Duties and Responsibilities.
|
|
|
48
|
|
|
Section 602
|
|
Notice of Defaults.
|
|
|
49
|
|
|
Section 603
|
|
Certain Rights of Trustee.
|
|
|
49
|
|
|
Section 604
|
|
Not Responsible for Recitals or Issuance of Securities.
|
|
|
50
|
|
|
Section 605
|
|
May Hold Securities.
|
|
|
51
|
|
|
Section 606
|
|
Money Held in Trust.
|
|
|
51
|
|
|
Section 607
|
|
Compensation and Reimbursement.
|
|
|
51
|
|
|
Section 608
|
|
Disqualification; Conflicting Interests.
|
|
|
52
|
|
|
Section 609
|
|
Corporate Trustee Required; Eligibility.
|
|
|
52
|
|
|
Section 610
|
|
Resignation and Removal; Appointment of Successor.
|
|
|
52
|
|
|
Section 611
|
|
Acceptance of Appointment by Successor.
|
|
|
54
|
|
|
Section 612
|
|
Merger, Conversion, Consolidation or Succession to Business.
|
|
|
55
|
|
|
Section 613
|
|
Preferential Collection of Claims Against Company.
|
|
|
55
|
|
|
Section 614
|
|
Appointment of Authenticating Agent.
|
|
|
55
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE SEVEN
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
|
|
|
Section 701
|
|
Company to Furnish Trustee Names and Addresses of Holders.
|
|
|
57
|
|
|
Section 702
|
|
Preservation of Information, Communications to Holders.
|
|
|
57
|
|
|
Section 703
|
|
Reports by Trustee.
|
|
|
58
|
|
|
Section 704
|
|
Reports by Company.
|
|
|
58
|
|
|
|
|
|
|
|
|
|
ARTICLE EIGHT
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
|
|
|
Section 801
|
|
Company May Consolidate, Etc., Only on Certain Terms.
|
|
|
58
|
|
|
Section 802
|
|
Successor Corporation Substituted.
|
|
|
59
|
|
|
|
|
|
|
|
|
|
ARTICLE NINE
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
|
Section 901
|
|
Supplemental Indentures Without Consent of Holders.
|
|
|
60
|
|
|
Section 902
|
|
Supplemental Indentures with Consent of Holders.
|
|
|
61
|
|
|
Section 903
|
|
Execution of Supplemental Indentures.
|
|
|
62
|
|
|
Section 904
|
|
Effect of Supplemental Indentures.
|
|
|
62
|
|
|
Section 905
|
|
Conformity with Trust Indenture Act.
|
|
|
62
|
|
|
Section 906
|
|
Reference in Securities to Supplemental Indentures.
|
|
|
63
|
|
|
|
|
|
|
|
|
|
ARTICLE
|
TEN COVENANTS
|
|
|
|
|
|
|
|
|
|
Section 1001
|
|
Payment of Principal, Premium and Interest.
|
|
|
63
|
|
|
Section 1002
|
|
Maintenance of Office or Agency.
|
|
|
63
|
|
|
Section 1003
|
|
Money for Security Payments to be Held in Trust.
|
|
|
63
|
|
|
Section 1004
|
|
Statement as to Compliance.
|
|
|
65
|
|
|
Section 1005
|
|
Waiver of Certain Covenants.
|
|
|
65
|
|
|
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
|
|
|
Section 1101
|
|
Applicability of This Article.
|
|
|
65
|
|
|
Section 1102
|
|
Election to Redeem; Notice to Trustee.
|
|
|
66
|
|
|
Section 1103
|
|
Selection of Securities to Be Redeemed.
|
|
|
66
|
|
|
Section 1104
|
|
Notice of Redemption.
|
|
|
66
|
|
|
Section 1105
|
|
Deposit of Redemption Price.
|
|
|
67
|
|
|
Section 1106
|
|
Payment of Securities Called for Redemption.
|
|
|
67
|
|
|
Section 1107
|
|
Company’s Right of Redemption.
|
|
|
67
|
|
|
|
|
|
|
|
|
|
ARTICLE TWELVE
|
SINKING FUNDS
|
|
|
|
|
|
|
|
|
|
Section 1201
|
|
Applicability of Article.
|
|
|
68
|
|
|
Section 1202
|
|
Satisfaction of Sinking Fund Payments with Securities.
|
|
|
68
|
|
|
Section 1203
|
|
Redemption of Securities for Sinking Fund.
|
|
|
69
|
|
iii
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE THIRTEEN
|
SUBORDINATION OF SECURITIES
|
|
|
|
|
|
|
|
|
|
Section 1301
|
|
Securities Subordinate to Senior Indebtedness.
|
|
|
70
|
|
|
Section 1302
|
|
Payment Over of Proceeds Upon Dissolution, Etc.
|
|
|
70
|
|
|
Section 1303
|
|
Prior Payment to Senior Indebtedness Upon Acceleration of Securities.
|
|
|
72
|
|
|
Section 1304
|
|
No Payment When Senior Indebtedness in Default.
|
|
|
72
|
|
|
Section 1305
|
|
Payment Permitted If No Default.
|
|
|
73
|
|
|
Section 1306
|
|
Subrogation to Rights of Holders of Senior Indebtedness.
|
|
|
73
|
|
|
Section 1307
|
|
Provisions Solely to Define Relative Rights.
|
|
|
74
|
|
|
Section 1308
|
|
Trustee to Effectuate Subordination.
|
|
|
74
|
|
|
Section 1309
|
|
No Waiver of Subordination Provisions.
|
|
|
74
|
|
|
Section 1310
|
|
Notice to Trustee.
|
|
|
74
|
|
|
Section 1311
|
|
Reliance on Judicial Order or Certificate of Liquidating Agent.
|
|
|
75
|
|
|
Section 1312
|
|
Trustee Not Fiduciary for Holders of Senior Indebtedness.
|
|
|
75
|
|
|
Section 1313
|
|
Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee’s Rights.
|
|
|
75
|
|
|
Section 1314
|
|
Article Applicable to Paying Agents.
|
|
|
75
|
|
|
Section 1315
|
|
Certain Conversions or Exchanges Deemed Payment.
|
|
|
76
|
|
iv
Reconciliation and tie between the Trust Indenture Act of 1939 (including cross-references to
provisions of Sections 310 to and including 317 which, pursuant to Section 318(c) of the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, are a part of and
govern the Junior Subordinated Indenture (whether or not physically contained therein), dated as of
March 29, 2007.
|
|
|
|
|
Note:
|
|
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Junior
Subordinated Indenture.
|
|
|
|
|
|
|
|
Trust Indenture Section Act
|
|
Indenture Section
|
|
310
|
|
(a)(1)
|
|
609
|
|
|
|
(a)(2)
|
|
609
|
|
|
|
(a)(3)
|
|
Not Applicable
|
|
|
|
(a)(4)
|
|
Not Applicable
|
|
|
|
(a)(5)
|
|
609
|
|
|
|
(b)
|
|
608
|
|
|
|
(c)
|
|
Not Applicable
|
|
311
|
|
(a)
|
|
613
|
|
|
|
(b)
|
|
613
|
|
|
|
(c)
|
|
Not Applicable
|
|
312
|
|
(a)
|
|
701
|
|
|
|
(b)
|
|
702
|
|
|
|
(c)
|
|
702
|
|
313
|
|
(a)
|
|
703
|
|
|
|
(b)(1)
|
|
703
|
|
|
|
(b)(2)
|
|
703
|
|
|
|
(c)
|
|
703
|
|
|
|
(d)
|
|
703
|
|
314
|
|
(a)
|
|
704
|
|
|
|
(b)
|
|
Not Applicable
|
|
|
|
(c)(1)
|
|
102
|
|
|
|
(c)(2)
|
|
102
|
|
|
|
(c)(3)
|
|
Not Applicable
|
|
|
|
(d)
|
|
Not Applicable
|
|
|
|
(e)
|
|
102
|
|
|
|
(f)
|
|
Not Applicable
|
|
315
|
|
(a)
|
|
601
|
|
|
|
(b)
|
|
602
|
|
|
|
(c)
|
|
601
|
|
|
|
(d)
|
|
601
|
|
|
|
(e)
|
|
514
|
|
316
|
|
(a)(last sentence)
|
|
101
|
|
|
|
(a)(1)(A)
|
|
512
|
|
|
|
(a)(1)(B)
|
|
513
|
|
|
|
(a)(2)
|
|
Not Applicable
|
|
|
|
(b)
|
|
508
|
|
|
|
(c)
|
|
104
|
|
317
|
|
(a)(1)
|
|
503
|
|
|
|
(a)(2)
|
|
504
|
|
|
|
(b)
|
|
1003
|
|
318
|
|
(a)
|
|
107
|
|
|
|
(b)
|
|
Not Applicable
|
|
|
|
(c)
|
|
107
|
v
JUNIOR SUBORDINATED INDENTURE, dated as of March 29, 2007 between THE CHUBB CORPORATION,
a New Jersey corporation (hereinafter called the “Company”) having its principal office at 15
Mountain View Road, Warren, New Jersey, 07061, and The Bank of New York Trust Company, N.A., a
national banking association, as Trustee (hereinafter called the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured junior subordinated debt securities in series
(hereinafter called the “Securities”) of substantially the tenor hereinafter provided and to
provide the terms and conditions upon which the Securities are to be authenticated, issued and
delivered.
All things necessary to make the Securities, when executed by the Company and authenticated
and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and
to make this Indenture a valid agreement of the Company, in accordance with their and its terms,
have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(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, and the term “generally
accepted accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally accepted at the date or
time of such computation; provided, that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by the Company;
and
(4) the words “herein,” “hereof” 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.
Certain terms, used principally in Article Six, are defined in that Article.
“1940 Act” means the Investment Company Act of 1940, as amended.
“Act” when used with respect to any Holder has the meaning specified in Section 104.
“Additional Interest” means the interest, if any, that shall accrue on any interest on the
Securities of any series that is in arrears for more than one interest payment period or not paid
during any Extension Period, which in either case shall accrue at the rate per annum specified or
determined as specified in such Security.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
“Board of Directors” means either the board of directors of the Company or any committee of
that board duly authorized to act 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, or such
committee of the Board of Directors or officers of the Company to which authority to act on behalf
of the Board of Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
“Business Day” means any day other than (
i
) a Saturday or Sunday, or (
ii
) a
day on which banking institutions in The City of New York are authorized or required by law or
executive order to remain closed, or (
iii
) a day on which the Corporate Trust Office of the
Trustee.
“Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such date.
7
“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 shall mean such successor Person.
“Company Request” and “Company Order” mean, respectively, the written request or order signed
in the name of the Company by the Chairman, any Vice Chairman, the Chief Executive Officer,
President or a Vice President, or by the Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“Corporate Trust Office” means the principal office of the Trustee at which at any particular
time this Indenture shall be administered and which is located at the date hereof at 2 North
LaSalle Street, Suite 1020, Global Corporate Trust, Chicago, Illinois, 60602.
“Corporation” includes corporations, associations, companies and statutory trusts.
“Defaulted Interest” has the meaning specified in Section 307.
“Depositary” means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated as Depositary by the
Company pursuant to Section 301 with respect to such series (or any successor thereto).
“Dollar” means the currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
“Event of Default” unless otherwise specified in the supplemental indenture creating a series
of Securities, has the meaning specified in Article Five.
“Extension Period” has the meaning specified in Section 311.
“Foreign Currency” means any currency 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.
“Global Security” means a Security in the form prescribed in Section 204 evidencing all or
part of a series of Securities, issued to the Depositary or its nominee for such series, and
registered in the name of such Depositary or its nominee.
“Government Obligations” means, with respect to the Securities of any series, securities which
are (
i
) direct obligations of the United States of America or (
ii
) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed by the United States of America and
which, in either case, are full faith and credit obligations of the United States of America and
are not callable or redeemable at the option of the issuer thereof and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such Government Obligation or a specific payment of
8
interest on or principal of any such Government Obligation held by such custodian for the
account of the holder of such 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 the Government Obligation
evidenced by such depository receipt.
“Holder” means a Person in whose name a Security is registered in the Securities Register.
“Junior Subordinated Payment” has the meaning specified in Section 1302.
“Indenture” means this instrument as originally executed or 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 shall include the terms of each particular series of Securities
established as contemplated by Section 301.
“Interest Payment Date” means as to each series of Securities the Stated Maturity of an
installment of interest on such Securities.
“Interest Rate” means the rate of interest specified or determined as specified in each
Security as being the rate of interest payable on such Security.
“Lien” means any mortgage, pledge, lien, security interest or other encumbrance.
“Maturity” when used with respect to any Security means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” has the meaning specified in Section 501(3).
“Officers’ Certificate” means a certificate signed (i) by the chairman, the vice chairman, the
chief executive officer, the president or any vice president, and (ii) by the treasurer or any
assistant treasurer, or the secretary or any assistant secretary of the Company, and delivered to
the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company.
“Original Issue Date” means the date of issuance specified as such in each Security.
“Original Issue Discount Security” means any security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
9
“Outstanding” means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 306, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the Company, or any other
obligor on the Securities or any Affiliate of the Company or such obligor, and, subject to the
provisions of Section 601, the Trustee shall be entitled to accept such Officers’ Certificate as
conclusive evidence of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
“Paying Agent” means the Trustee or any Person authorized by the Company to pay the principal
of, premium, if any, or interest on, any Securities on behalf of the Company.
“Person” means any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
10
“Place of Payment” means, with respect to the Securities of any series, the place or places
where the principal of (and premium, if any) and interest on the Securities of such series are
payable pursuant to Section 301 or 311.
“Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or
stolen Security.
“Proceeding” has the meaning specified in Section 1302.
“Regular Record Date” for the interest payable on any Interest Payment Date with respect to
the Securities of a series means, unless otherwise provided pursuant to Section 301 with respect to
Securities of a series, if such interest payment date is the first day of a calendar month, the
fifteenth day of the next preceding month or, if such interest payment date is the fifteenth day of
a calendar month, the first day of such calendar month (whether or not a Business Day).
“Responsible Officer” when used with respect to the Trustee means any officer of the Trustee
assigned by the Trustee from time to time to administer its corporate trust matters, or any other
officer of the Trustee to whom a matter arising under this Indenture is referred.
“Securities” or “Security” means any debt securities or debt security, as the case may be,
authenticated and delivered under this Indenture.
“Securities Register” and “Securities Registrar” have the respective meanings specified in
Section 305.
“Senior Indebtedness” means (unless otherwise provided in the applicable supplemental
indenture or Board Resolution adopted pursuant to Section 301 establishing the terms of the
Securities of any series) the principal of, premium, if any, and unpaid interest on the following,
whether outstanding at the date hereof or thereafter incurred or created: (i) all obligations of
the Company (other than obligations pursuant to this Indenture and the Securities of any series)
for money borrowed, (ii) all obligations of the Company evidenced by notes, debentures, bonds or
other similar instruments, including obligations incurred in connection with the acquisition of
property, assets or businesses and including all other debt securities issued by the Company to any
trust or a trustee of such trust, or to a partnership or other Affiliate that acts as a financing
vehicle for the Company, in connection with the issuance of securities by such vehicles, (iii) all
obligations of the Company under leases required or permitted to be capitalized under generally
accepted accounting principles, (iv) all reimbursement obligations of the Company with respect to
letters of credit, bankers’ acceptances or similar facilities issued for the account of the
Company, (v) all obligations of the Company issued or assumed as the deferred purchase price of
property or services, including all obligations under master lease transactions pursuant to which
the Company or any Subsidiary has agreed to be
11
treated as owner of the subject property for federal income tax purposes (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of business), (vi) all
payment obligations of the Company under interest rate swap or similar agreements or foreign
currency hedge, exchange or similar agreements at the time of determination, including any such
obligations incurred solely to act as a hedge against increases in interest rates that may occur
under the terms of other outstanding variable or floating rate indebtedness of the Company, (vii)
all obligations of the types referred to in clauses (i) through (vi) above of another Person and
all dividends of another Person the payment of which, in either case, the Company has assumed or
guaranteed or for which the Company is responsible or liable, directly or indirectly, jointly or
severally, as obligor, guarantor or otherwise, (viii) all compensation, reimbursement and
indemnification obligations of the Company to the Trustee pursuant to this Indenture, and (ix) all
amendments, modifications, renewals, extensions, refinancings, replacements and refundings of any
of the foregoing types of indebtedness; provided, that, notwithstanding anything to the contrary in
the foregoing, unless otherwise provided in the applicable supplemental indenture or Board
Resolution adopted pursuant to Section 301 establishing the terms of the Securities of any series,
“Senior Indebtedness” shall not include (1) indebtedness incurred for the purchase of goods,
materials or property, or for services obtained in the ordinary course of business or for other
liabilities arising in the ordinary course of business, (2) any indebtedness which by its terms
expressly provides that it is not superior in right of payment to the Securities of any series or
(3) any indebtedness of the Company owed to a Person who is a Subsidiary or employee of the
Company.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
“Stated Maturity” when used with respect to any Security or any installment of principal
thereof or interest thereon means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of interest is due and payable.
“Subsidiary” means (i) any corporation of which at the time of determination the Company
and/or one or more of its Subsidiaries owns or controls directly or indirectly more than 50% of the
outstanding shares of voting stock and (ii) any partnership or limited liability company of which
more than 50% of the partnership’s or limited liability company’s capital accounts, distribution
rights or general or limited partnership or membership interests are owned or controlled, directly
or indirectly, by the Company and/or one or more of its Subsidiaries. For purposes of this
definition, “voting stock” means stock which has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting power by reason of
any contingency.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder and, if at any time there is more than one such Person,
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“Trustee” as used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
“Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbb),
as amended and as in effect on the date as of this Indenture, except as provided in Section 905.
“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 102
Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent (including covenants, compliance with which constitutes a
condition 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 (including covenants compliance with which constitute a condition 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 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 (other than the certificates provided pursuant to Section 1004) shall
include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 103
Forms 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,
13
or covered by the opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Company, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with the
Trustee shall contain a statement that such firm is independent.
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, they may,
but need not, be consolidated and form one instrument.
Section 104
Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given to or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments is or are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section.
14
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a Person acting in other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders of Securities of any series entitled to take any action under this
Indenture by vote or consent. Except as otherwise provided herein, such record date shall be the
later of 30 days prior to the first solicitation of such consent or vote or the date of the most
recent list of Holders of the Securities of such series furnished to the Trustee pursuant to
Section 701 prior to such solicitation. If a record date is fixed, those persons who were Holders
of the Securities of such series at such record date (or their duly designated proxies), and only
those persons, shall be entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders of any Security of
such series after such record date, provided, however, that unless such vote or consent is obtained
from the Holders of Securities of such series (or their duly designated proxies) of the requisite
principal amount of Outstanding Securities of such series prior to the date which is the 120th day
after such record date, any such vote or consent previously given shall automatically and without
further action by any Holder of Securities of such series be canceled and of no further effect.
Section 105
Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
15
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
(except as otherwise provided in Section 501 hereof) hereunder if in writing and mailed,
first class, postage prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first
class postage prepaid, to each Holder entitled to such notice, at the address of such Holder as it
appears in the Securities Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
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 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 107
Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
any of Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section
318(c) thereof, such imposed duties shall control.
Section 108
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 109
Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 110
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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Section 111
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto, any Paying Agent and their successors and assigns and the Holders of
the Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112
Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of laws principles thereof.
Section 113
Non-Business Days.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, in any case where
any Interest Payment Date or Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Securities) payment of principal,
premium, if any, or interest need not be made on such date, but may be made on the next succeeding
Business Day and no interest shall accrue for the period from and after such Interest Payment Date
or Maturity, as the case may be, until the next succeeding Business Day, in each case with the same
force and effect as if made on the Interest Payment Date or at Maturity, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day.
Section 114
Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder, officer or director, as
such of the Company or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities.
ARTICLE TWO
SECURITY FORMS
Section 201
Forms Generally.
The Securities of each series and the Trustee’s certificate of authentication shall be in
substantially the forms set forth in this Article, or in such other form or forms as shall be
established by or pursuant to a Board Resolution or in one or more indentures
17
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such securities, as evidenced by
their execution of the Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 with respect to the
authentication and delivery of such Securities.
The Trustee’s certificates of authentication shall be substantially in the form set forth in
this Article.
The definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods, if required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their execution of such
securities.
Section 202
Form of Face of Security.
[If the Security is a Global Security, insert — This Security is a Global Security within the
meaning of the Indenture hereinafter referred to and is registered in the name of The Depository
Trust Company (the “Depository”) or a nominee of the Depository. This Security is exchangeable for
Securities registered in the name of a person other than the Depository or its nominee only in the
limited circumstances described in the Indenture and no transfer of this Security (other than a
transfer of this Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the Depository) may be registered
except in limited circumstances.
Unless this Security is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York) to The Chubb Corporation or its agent for registration of
transfer, exchange or payment, and any Security issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
If the Security is an Original Issue Discount Security, insert — This Security was issued
with original issue discount for United States Federal income tax purposes. For further
information, please contact [name, title and address or telephone number of a representative of the
Company].
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THE CHUBB CORPORATION
(Title of Security)
THE CHUBB CORPORATION, a corporation organized and existing under the laws of New Jersey
(hereinafter called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or
registered assigns, the principal sum of
Dollars on
.
The Company further promises to pay interest on said principal sum from
, ___or from the
most recent interest payment date (each such date, an “Interest Payment Date”) on which interest
has been paid or duly provided for, [monthly] [quarterly] [semi-annually] [if applicable, insert-
(subject to deferral as set forth herein)] in arrears on [insert applicable Interest Payment Dates]
of each year, commencing
, ___, at the rate of ___% per annum, until the principal hereof
shall have become due and payable, [if applicable, insert- plus Additional Interest, if any,] until
the principal hereof is paid or duly provided for or made available for payment [if applicable,
insert- and on any overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of interest at the
rate of ___% per annum, compounded [monthly] [quarterly] [annually]. The amount of interest
payable for any period will be computed on the basis of twelve 30-day months and a 360-day year.
The amount of interest payable for any partial period shall be computed on the basis of the number
of days elapsed in a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date the payment was originally
payable. A “Business Day” shall mean any day other than a day on which banking institutions in the
City of New York are authorized or required by law or executive order to remain closed or a day on
which the Corporate Trust Office of the Trustee is closed for business. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities, as defined in the Indenture) is registered at the close of business on the
Regular Record Date for such interest installment, which shall be the [[insert Regular Record
Dates] (whether or not a Business Day)] [close of business on the Business Day] next preceding such
Interest Payment Date. Any such interest installment not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on
19
which the Securities of this series may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
[If applicable, insert- The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such Security for up to ___
consecutive [months] [quarters] with respect to each deferral period (each an “Extension Period”),
during which periods the Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and
unpaid (together with Additional Interest thereon to the extent permitted by applicable law);
provided that during any such Extension Period, the Company will not, and will not permit any
Subsidiary to (i) declare or pay any dividends or distributions or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the Company’s outstanding capital stock or (ii)
make any payment of principal of, premium, if any, or interest on, or repay, repurchase or redeem
any debt security that ranks
pari passu
with or junior in interest to this Security upon
liquidation, dissolution or winding-up of the Company, or (iii) make any guarantee payments with
respect to any guarantee issued by the Company of securities of any Subsidiary if such guarantee
ranks
pari passu
with or junior in interest to this Security upon liquidation, dissolution or
winding-up of the Company (in each of clauses (i) through (iii) above, subject to certain
exceptions set forth in the Indenture). [Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that such Extension Period
together with all such previous and further extensions of such Extension Period, shall not exceed
___consecutive [months] [quarters] or extend beyond the Maturity of this Security.] Upon the
termination of any such Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may select 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 Holder of this Security and the Trustee notice of its
selection of an Extension Period at least one Business Day prior to the Interest Payment Date.
Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in the United States, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert-; provided, however, that at the option
of the Company payment of interest may be made (
i
) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities Register or (
ii
) by
wire transfer in immediately available funds at such place and to such account as may be designated
by the Person entitled thereto as specified in the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (
a
) agrees to and shall be
bound by such provisions, (
b
) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the
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subordination so provided and (
c
) appoints the Trustee his attorney-in-fact for any
and all such purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each
such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated:
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THE CHUBB CORPORATION
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By:
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[Chairman, Vice Chairman,
President or Vice President]
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THE CHUBB CORPORATION
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By:
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[Treasurer, Assistant Treasurer
Secretary or Assistant Secretary]
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Attest:
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[Secretary or Assistant Secretary]
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Section 203
Form of Reverse of Security
.
This Security is one of a duly authorized issue of securities of the Company, (herein called
the “Securities”), issued and to be issued in one or more series under a Junior Subordinated
Indenture, dated as of March 29, 2007 (herein called the “Indenture”), between the Company and The
Bank of New York Trust Company, N.A. as Trustee (herein called the “Trustee”, which term includes
any successor trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights,
duties and
21
immunities thereunder of the Trustee, the Company and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof [, limited in aggregate principal amount to $
].
All terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
[If applicable, insert- The Company may, at its option, subject to the terms and conditions of
Article Eleven of the Indenture, redeem this Security at any time in whole or in part, without
premium or penalty, at a redemption price equal to the accrued and unpaid interest [if applicable,
insert-, including Additional Interest, if any,] [if applicable, insert, including any make-whole
premium,] to the date fixed for redemption, plus the principal amount thereof].
In the event of redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
[If the Security is not an Original Issue Discount Security, — If an Event of Default with
respect to Securities of this series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.]
[If the Security is an Original Issue Discount Security, — If an Event of Default with respect
to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner, with the effect and
subject to the conditions provided in the Indenture. Such amounts shall be equal to — insert
formula for determining the amount. Upon payment (i) of the amount of principal so declared due
and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of the Company’s
obligations in respect of the payment of the principal of and interest, if any, on the Securities
of this series shall terminate.]
The Indenture contains provisions for satisfaction, discharge and defeasance at any time of
the entire indebtedness of this Security upon compliance by the Company with certain conditions set
forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities of each
series to be affected at the time Outstanding. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under the
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Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company maintained under
Section 1002 of the Indenture duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered form without coupons in
denominations of $___ and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
[If applicable, insert- The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial interest in, this
Security agree that for United States Federal, state and local tax purposes it is intended that
this Security constitute indebtedness.]
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 204
Additional Provisions Regarding Global Securities.
Any Global Security issued hereunder shall, in addition to the provisions contained in
Sections 202 and 203 bear a legend in substantially the following form:
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“This Security is a Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary. This Security is
exchangeable for Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary.”
The Company and the Trustee may treat the Depositary (or its nominee) as the sole and
exclusive owner of the Securities registered in its name for the purposes of payment of the
principal of, premium, if any, or interest on, the Securities, giving any notice permitted or
required to be given to Holders under the Indenture, registering the transfer of Securities,
obtaining any consent or other action to be taken by Holders and for all other purposes whatsoever;
and neither the Company nor the Trustee shall be affected by any notice to the contrary. Neither
the Company nor the Trustee shall have any responsibility or obligation to any participant in the
Depositary, any Person claiming a beneficial ownership interest in the Securities under or through
the Depositary or any such participant, or any other Person which is not shown on the register as
being a Holder, with respect to the Securities, the accuracy of any records maintained by the
Depositary or any such participant, the payment by the Depositary or any such participant of any
amount in respect of the principal of, premium, if any, or interest on, the Securities, any notice
which is permitted or required to be given to Holders under the Indenture, any consent given or
other action taken by the Depositary as Holder, or any selection by the Depositary of any
participant or other Person to receive payment of principal, premium, if any, or interest on, the
Securities.”
Section 205
Form of Trustee’s Certificate of Authentication.
This is one of the Securities designated herein and referred to in the within-mentioned
Indenture.
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THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
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By:
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Authorized Officer
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ARTICLE THREE
THE SECURITIES
Section 301
Title and Terms.
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. There shall be established in or pursuant
to a Board Resolution, and set forth in an Officers’ Certificate, or established
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in one or more indentures supplemental hereto, prior to the issuance of Securities of a
series:
(a) the title and designation of the Securities of such series, which shall distinguish the
Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of 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 the series pursuant to Section 304, 305, 306, 906 or 1106); provided, however, that the
authorized aggregate principal amount of such series may be increased above such amount by a Board
Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the Securities of such series
is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall bear interest, if
any, the rate or rates and extent to which Additional Interest, if any, shall be payable in respect
of any Securities of such series, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any Interest Payment Date or the
method by which any of the foregoing shall be determined, and the dates from which interest will
accrue and the method of determining those dates;
(e) the right, pursuant to Section 311 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, including any restrictive covenants during any interest
deferral or extension period, and any other specific covenants for the payment or deferral of
interest on the Securities of such series;
(f) the circumstances and date on which premium, if any, will be paid with respect to the
Securities of such series;
(g) the place or places where the principal of (and premium, if any) and interest on the
Securities of such series shall be payable, the place or places where the Securities of such series
may be presented for registration of transfer or exchange, and the place or places where notices
and demands to or upon the Company in respect of the Securities of such series and the Indenture
may be made;
(h) the period or periods within or the date or dates on which, if any, the price or prices at
which and the terms and conditions upon which the Securities of such series may be redeemed, in
whole or in part, at the option of the Company;
(i) the obligation or the right, if any, of the Company to redeem, repay or purchase the
Securities of such series pursuant to any sinking fund, amortization or analogous provisions or at
the option of a Holder thereof and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which and the other terms
and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
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(j) the denominations in which any Securities of such series shall be issuable, if other than
denominations of $1,000 and any integral multiple thereof;
(k) if other than Dollars, the currency or currencies (including currency unit or units) in
which the principal of (and premium, if any) and interest, if any, on the Securities of the series
shall be payable, or in which the Securities of the series shall be denominated;
(l) the additions, modifications or deletions, if any, in the Events of Default or related
provisions of this Indenture, including acceleration mechanisms, or in the covenants of the Company
set forth herein with respect to the Securities of such series;
(m) any financial ratio covenants applicable with respect to the Securities of such series;
(n) if other than the principal amount thereof, the portion of the principal amount of
Securities of such series that shall be payable upon declaration of acceleration of the Maturity
thereof;
(o) the additions or changes, if any, to this Indenture with respect to the Securities of such
series as shall be necessary to permit or facilitate the issuance of the Securities of such series
in bearer form, registrable or not registrable as to principal, and with or without interest
coupons;
(p) any index or indices used to determine the amount of payments of principal of and premium,
if any, on the Securities of such series or the manner in which such amounts will be determined;
(q) whether the Securities of any series shall be issued in whole or in part in the form of a
temporary Global Security representing all of the Securities of such series and exchange of such
temporary Global Security for definitive Securities of such series;
(r) whether the Securities of the series shall be issued in whole or in part in the form of
one or more Global Securities and, in such case, the Depositary for such Global Securities, which
Depositary shall be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the terms and conditions upon which interests in such Global Securities may be
exchanged for certificates;
(s) any additions, modifications or deletions to the requirements for consent by the Holders
to any amendment or waiver of the terms or conditions of this Indenture or the Securities of such
series;
(t) the appointment of any trustee, authenticating or paying agent, transfer agent or other
agent for the Securities of such series;
(u) the terms and conditions of any right to convert or exchange Securities of such series
into any other securities or property of the Company, and the additions or
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changes, if any, to this Indenture with respect to the Securities of such series to permit or
facilitate such conversion or exchange;
(v) any additions, modifications or deletions of the provisions of Article Thirteen of this
Indenture or to the definition of “Senior Indebtedness” contained in Section 101 of this Indenture;
(w) the relative degree, if any, to which the Securities of the series shall be senior to or
be subordinated to other series of Securities in right of payment, whether such other series of
Securities are Outstanding or not; and
(x) any other terms of the Securities of such series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set
forth in such Officers’ Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.
Section 302
Denominations.
The Securities of each series shall be in registered form without coupons and shall be
issuable in denominations of $1,000 and any integral multiple thereof, unless otherwise provided in
the applicable supplemental indenture or Board Resolution adopted pursuant to Section 301
establishing the terms of the Securities of any series.
Section 303
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by both (a) its Chairman or its Vice
Chairman or its President or one of its Vice Presidents and (b) by its Treasurer or its Secretary
or any Assistant Treasurer or Assistant Secretary under its corporate seal reproduced or impressed
thereon, which may, but need not be, attested. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities. At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication. Securities may be authenticated on
original issuance from time to time and delivered pursuant to such procedures acceptable to the
Trustee (“Procedures”) as may be specified from time to time by Company Order. Procedures
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may authorize authentication and delivery pursuant to oral instructions of the Company or a
duly authorized agent, which instructions shall be promptly confirmed in writing.
Prior to the delivery of a Security in any such form to the Trustee for authentication, the
Company shall deliver to the Trustee the following:
(a) A Company Order requesting the Trustee’s authentication and delivery of all or a portion
of the Securities of such series, and if less than all, setting forth procedures for such
authentication;
(b) The Board Resolution by or pursuant to which such form of Security has been approved, and
the Board Resolution, if any, by or pursuant to which the terms of the Securities of such series
have been approved, and, if pursuant to a Board Resolution, an Officers’ Certificate describing the
action taken;
(c) An Officers’ Certificate dated the date such certificate is delivered to the Trustee,
stating that all conditions precedent provided for in this Indenture relating to the authentication
and delivery of Securities in such form and with such terms have been complied with; and
(d) An Opinion of Counsel substantially to the effect that (i) the form of such Securities has
been duly authorized and approved in conformity with the provisions of this Indenture; (ii) the
terms of such Securities have been duly authorized and determined in conformity with the provisions
of this Indenture, or, if such terms are to be determined pursuant to Procedures, when so
determined such terms shall have been duly authorized and determined in conformity with the
provisions of this Indenture; and (iii) Securities in such form when completed by appropriate
insertions and executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this
Indenture within the authorization as to aggregate principal amount established from time to time
by the Board of Directors and sold in the manner specified in such opinion of Counsel, will be the
legal, valid and binding obligations of the Company entitled to the benefits of this Indenture,
subject to applicable bankruptcy, reorganization, insolvency and similar laws generally affecting
creditors’ rights, to general equitable principles except as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Securities denominated other than in Dollars (or
a Foreign Currency or currency unit judgment in respect of such claim) be converted into Dollars at
a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States and subject to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders of such Securities; provided,
however, that the Trustee shall be entitled to receive the documents referred to in Clauses (b),
(c) and (d) above only at or prior to the first request of the Company to the Trustee to
authenticate Securities of such series.
Each Security shall be dated the date of its authentication.
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No Security 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 herein executed by the Trustee by the manual signature of
one of its authorized officers, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of such series to be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender
of the temporary Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of authorized
denominations having the same Original Issue Date and Stated Maturity and having the same terms as
such temporary Securities. Until so exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.
Section 305
Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. Such register is herein sometimes
referred to as the “Securities Register.” Unless otherwise provided in the applicable supplemental
indenture or Board Resolution adopted pursuant to Section 301 establishing the terms of the
Securities of any series, the Trustee is hereby appointed “Securities Registrar” for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office or agency of the
Company designated for that purpose the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations, of a like aggregate principal amount, of the same
original Issue Date and Stated Maturity and having the same terms.
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At the option of the Holder, Securities may be exchanged for other Securities of the same
series of any authorized denominations, of a like aggregate principal amount, of the same Original
Issue Date and Stated Maturity and having the same terms, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration, transfer or exchange shall (if so
required by the Company or the Securities Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the Securities Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer or exchange of Securities.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, notwithstanding any
of the foregoing, any Global Security of a series shall be exchangeable pursuant to this Section
305 for Securities registered in the names of Persons other than the Depositary for such Security
or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time such Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as amended, (ii) the Company
executes and delivers to the Trustee a Company Order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing an Event of Default with respect
to the Securities of such series. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names as such Depositary
shall direct.
Notwithstanding any other provision in this Indenture, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global Security to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, neither the Company
nor the Trustee shall be required, pursuant to the provisions of this Section, (a) to issue,
transfer or exchange any Security of any series during a period beginning at the opening of
business 15 days before the day of selection for
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redemption of Securities pursuant to Article Eleven and ending at the close of business on the
day of mailing of notice of redemption or (b) to transfer or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be redeemed in part, any
portion thereof not to be redeemed.
Section 306
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such security or
indemnity as may be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same issue and series of like tenor and principal amount, having the same Original
Issue Date and Stated Maturity and bearing the same Interest Rate as such mutilated Security, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security, and (ii) such security or indemnity
as may be required by them to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide purchaser, the issuing
Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of the same issue and series of like
tenor and principal amount, having the same Original Issue Date and Stated Maturity and bearing the
same Interest Rate as such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security 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.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security 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 duly issued hereunder.
The provisions of this Section are 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.
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Section 307
Payment of Interest; Interest Rights Preserved.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, interest on any
Security of any series which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest in respect of Securities of such series, except that, unless otherwise provided in the
Securities of such series, interest payable on the Stated Maturity of a Security shall be paid to
the Person to whom principal is paid. The initial payment of interest on any Security of any
series which is issued between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the supplemental indenture or Board Resolution pursuant
to Section 301 with respect to the related series of Securities.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, any interest on any
Security which is payable, but is not timely paid or duly provided for, on any Interest Payment
Date for Securities of such series (herein called “Defaulted Interest”), shall forthwith cease to
be payable to the registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case,
as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series in respect of which interest is in default (or
their respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which
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 the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Security of such series at the address of such
Holder as it appears in the Securities Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at
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least once in a newspaper, customarily published in the English language on each
Business Day and 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 Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Securities
of the series in respect of which interest is in default may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon 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.
Section 308
Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the purpose of receiving
payment of principal of and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 309
Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange or for credit against
any payment in respect of a sinking or analogous fund, or for conversion shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and any such Securities and
Securities surrendered directly to the Trustee for any such purpose shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall be destroyed by the
Trustee and, upon request, the Trustee shall deliver to the Company a certificate of such
destruction.
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Section 310
Computation of Interest.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution
evidenced by an Officers’ Certificate adopted pursuant to Section 301 establishing the terms of the
Securities of any series, interest on the Securities of each series shall be computed on the basis
of a 360-day year of twelve 30-day months and interest on the Securities of each series for any
partial period shall be computed on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months.
Section 311
Deferrals of Interest Payment Dates.
If provided in the applicable supplemental indenture or Board Resolution adopted pursuant to
Section 301 establishing the terms of the Securities of any series, the Company shall have the
right, at any time during the term of such series, from time to time to defer or extend the
interest payment period for such Securities for such period or periods as may be specified pursuant
to Section 301 (each, an “Extension Period”) during which periods the Company shall have the right
to make partial payments of interest on any Interest Payment Date, and at the end of such Extension
Period the Company shall pay all interest then accrued and unpaid thereon (together with Additional
Interest thereon, if any, at the rate specified for the Securities of such series to the extent
permitted by applicable law), provided, however, that, unless otherwise provided in the applicable
supplemental indenture or Board Resolution adopted pursuant to Section 301 establishing the terms
of the Securities of any series, during any such Extension Period, the Company shall not, and shall
cause any Subsidiary not to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the Company’s capital
stock, (ii) make any payment of principal of, premium, if any, or interest on, or repay, repurchase
or redeem any debt securities that rank
pari passu
with or junior in interest to the Securities of
such series upon liquidation, dissolution or winding-up of the Company, or (iii) make any guarantee
payments with respect to any guarantee issued by the Company or securities of any Subsidiary if
such guarantee ranks
pari passu
with or junior in interest to the Securities of such series upon
liquidation, dissolution or winding-up of the Company (in each of clauses (i) through (iii) above,
other than (a) purchases, redemptions or other acquisitions of shares of capital stock of the
Company in connection with (1) any employment contract, benefit plan or other similar arrangement
with or for the benefit of any one or more employees, officers, directors, consultants or
independent contractors of the Company, (2) the satisfaction of obligations of the Company pursuant
to any contract entered into in the ordinary course of business prior to the beginning of such
Extension Period, (3) a dividend reinvestment or shareholder purchase plan, or (4) the issuance of
shares of capital stock of the Company, or securities convertible into or exercisable for such
shares of capital stock, as consideration in an acquisition transaction entered into prior to such
Extension Period, (b) exchanges, redemptions or conversions of (1) any class or series of capital
stock of the Company, or the capital stock of any Subsidiary, for any other class or series of
capital stock of the Company, or (2) any class or series of indebtedness of the Company for any
class or series of capital stock of the Company, (c) purchases of fractional interests in shares of
capital stock of the Company pursuant to the conversion or exchange provisions of such shares of
capital stock or the securities being converted or exchanged, (d)
34
declarations of dividends in connection with any shareholder rights plan or issuances of
rights, stock or other property under any shareholder rights plan, or redemptions or purchases of
rights pursuant thereto, (e) dividends in the form of stock, warrants, options or other rights
where the dividend stock or stock issuable upon exercise of such warrants, options or other rights
is the same stock as that on which the dividend is being paid or ranks equally with or junior to
such stock, (f) payments of current or deferred interest on debt securities that rank in right of
payment upon liquidation, dissolution or winding-up of the Company on a parity with the Securities
of such series that is made pro rata to the amounts due on such
pari passu
securities (including
the Securities of any series) and any payments of deferred interest on
pari passu
securities that,
if not made, would cause the Company to breach the terms of the instrument governing such
pari
passu
securities, (g) payments of principal in respect of
pari passu
securities having the same
scheduled maturity date as the Securities of such series, as required under a provision of such
pari passu
securities that is substantially the same as the provision for repayment of principal of
the Securities of such series and that is made on a pro rata basis among one or more series of
pari
passu
securities having such a provision and the securities of such series, and (h) repayments or
redemptions of a security necessary to avoid a breach of the instrument governing the same). Prior
to the termination of any such Extension Period, the Company may further extend the interest
payment period, provided that such Extension Period together with all such previous and further
extensions of such Extension Period shall not exceed the period or periods so specified or extend
beyond the Maturity 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, the Company may
select 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, unless otherwise provided in the
applicable supplemental indenture or Board Resolution adopted pursuant to Section 301 establishing
the terms of the Securities of any series. The Company shall give the Trustee notice of its
selection of such Extension Period at least one Business Day prior to the Interest Payment Date or
such other period specified pursuant to Section 301 for Securities of any series.
The Trustee shall promptly provide a copy of notice of the Company’s selection of such
Extension Period to the Holders of the outstanding Securities of such series.
Section 312
Agreed Tax Treatment.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, each Security
issued hereunder shall provide that the Company and, by its acceptance of a Security or a
beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in,
such Security agree that for United States Federal, state and local tax purposes it is intended
that such Security constitute indebtedness.
Section 313
CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of
35
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401
Satisfaction and Discharge of Indenture.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, this Indenture
shall cease to be of further effect with regard to the Securities of a series (except as to (i) any
surviving rights of transfer, substitution and exchange of Securities, (ii) rights hereunder of
Holders to receive payments of principal of (and premium, if any) and interest on the Securities
and other rights, duties and obligations of the Holders as beneficiaries hereof with respect to the
amounts, if any, so deposited with the Trustee and (iii) the rights and obligations of the Trustee
hereunder), and the Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered
(other than (i) Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and (ii) Securities
of such series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series 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 of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of such notice of
redemption, and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which
the Securities of such series are
36
payable or Government Obligations in an amount as will, together with
predetermined and certain income to accrue thereon, without consideration
of any reinvestment thereof, be sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
Section 402
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money or Government
Obligations deposited with the Trustee pursuant to Section 401 or Section 403, or received by the
Trustee in respect of Government Obligations deposited with the Trustee pursuant to Section 401 or
Section 403, shall be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose payment such money
or obligations have been deposited with or received by the Trustee; provided, however, such moneys
need not be segregated from other funds except to the extent required by law.
Section 403
Satisfaction, Discharge and Defeasance of Securities of Any Series.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, the Company shall
be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of
any such series and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(1) with respect to all Outstanding Securities of such series,
37
(A) the Company has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for such purpose money in an
amount sufficient to pay and discharge the entire indebtedness on all Outstanding
Securities of such series for principal (and premium, if any) and interest
(including any Additional Interest) to the Stated Maturity or any Redemption Date
as contemplated by the penultimate paragraph of this Section 403, as the case may
be; or
(B) the Company has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as obligations in trust for such purpose (i) an amount
of Government Obligations as will, or (ii) a combination of money and Government
Obligations as will, together with predetermined and certain income to accrue
thereon, without consideration of any reinvestment thereof, be sufficient to pay
and discharge when due the entire indebtedness on all Outstanding Securities of
such series for principal (and premium, if any) and interest (including any
Additional Interest) to the Stated Maturity or any Redemption Date as contemplated
by the penultimate paragraph of this Section 403, as the case may be; and
(2) the Company has paid or caused to be paid all other sums payable with respect to
the Outstanding Securities of such series; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
defeasance of the entire indebtedness on all Outstanding Securities of any such series have
been complied with.
Any deposits with the Trustee referred to in Section 403(1) above shall be irrevocable and
shall be made under the terms of a supplemental indenture or escrow trust agreement in form and
substance reasonably satisfactory to the Trustee. If any Outstanding Securities of such series are
to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company. If the Securities of such series are not to become due and payable
at their Stated Maturity or upon call for redemption within one year of the date of deposit, then
the Company shall give, not later than the date of such deposit, notice of such deposit to the
Holders of Securities of such series.
Upon the satisfaction of the conditions set forth in this Section with respect to all the
Outstanding Securities of any series, the terms and conditions of such series, including the terms
and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon,
or applicable to, the Company except as to any surviving rights of transfer, substitution and
exchange of Securities and provided, that the Company shall not be discharged from any payment
obligations in respect of Securities of such series
38
which are deemed not to be Outstanding under clause (iii) of the definition thereof if such
obligations continue to be valid obligations of the Company under applicable law.
ARTICLE FIVE
REMEDIES
Section 501
Events of Default.
“Event of Default”, wherever used herein with respect to the Securities of any series, unless
otherwise provided in the applicable supplemental indenture or Board Resolution adopted pursuant to
Section 301 establishing the terms of the 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):
(1) default in the payment of any installment of interest upon any of the Securities
of such series, including any Additional Interest in respect thereof, as and when the same
shall become due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of all or any part of the principal of (or premium, if any,
on) any of the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(3) default in the payment of any sinking fund installment as and when the same shall
become due and payable by the terms of the Securities of such series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company
in respect of the Securities of such series (other than a covenant or warranty in respect
of the Securities of such series a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of the series affected thereby, 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) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect, or a decree or
order adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization assignment, adjustment or composition of, as in respect of,
the Company under
39
any applicable federal or state law or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or for any
substantial part of its property or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a period of 30 consecutive
days; or
(6) the Company shall commence a voluntary case under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect or any other
case to be adjudicated a bankrupt or insolvent, or consent to the filing of such petition
or to the entry of an order for relief in an involuntary case under any such law or to the
commencement of any bankruptcy or insolvency proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under any applicable state
or federal law, or consent to the filing of such petition or the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of its property, or make any
general assignment for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action
in furtherance of such bankruptcy; or
(7) any other Event of Default established pursuant to Section 301 for the Securities
for such series.
Section 502
Acceleration of Maturity; Rescission and Annulment.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, if an Event of
Default described in clauses (1), (2), (3), (4) (if the Event of Default under clause (4) is with
respect to less than all series of Securities then Outstanding) or (7) above occurs and is
continuing, then, and in each and every such case, unless the principal of all of the Outstanding
Securities of that series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of such series then
Outstanding hereunder (each such series voting as a separate class) by notice in writing to the
Issuer (and to the Trustee if given by Holders of Securities), may declare the entire principal
(or, if the Securities of such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all Securities of such series
and the interest accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article Thirteen.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, if an Event of
Default described in clause (4) (if the Event of Default under clause (4) is with respect to all
series of Securities then Outstanding), (5) or (6) occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities
40
shall have already become due and payable, either the Trustee or the Holders of not less than
25% in aggregate principal amount of all the Securities of all series then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Holders
of Securities), may declare the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms thereof) of all the
Securities of all series then outstanding and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become immediately due and
payable, provided that the payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in Article Thirteen.
At any time after such a declaration of acceleration with respect to Securities of any series
or Securities of all series, as applicable, 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 a majority in principal amount of the Outstanding Securities of that series, or the
Holders of a majority in principal amount of the Outstanding Securities of all series, as
applicable, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any Additional Interest)
on all Securities of the affected series,
(B) the principal of (and premium, if any, on) any Securities of the affected
series which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue installments of interest at the rate borne by the Securities of the
affected series, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of the affected series, other
than the non-payment of the principal of Securities of the affected series which has become
due solely by such acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an acceleration, or rescission
and annulment thereof, with respect to Securities of a series all or part of which
41
is represented by a Global Security, a record date shall be established for determining
Holders of Outstanding Securities of such series entitled to join in such notice, which record date
shall be at the close of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date; provided, that,
unless such declaration of acceleration, or rescission and annulment, as the case may be, shall
have become effective by virtue of the requisite percentage having joined in such notice prior to
the day which is 90 days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without further action by any
Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the provisions of this
Section 502.
Section 503
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest (including any
Additional Interest) on any Security when such interest becomes 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 (and premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal, including any
sinking fund payment or analogous obligations (and premium, if any) and interest (including any
Additional Interest), including, to the extent that payment of such interest shall be lawful,
interest on any overdue principal (and premium if any) and on any overdue installments of interest
(including any Additional Interest) at the rate borne by the Securities; and, in addition thereto,
all amounts owing the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, 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
42
the rights of the Holders of Securities of such series 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 in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504
Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of overdue principal
(and premium, if any) or interest (including any Additional Interest)) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing
and unpaid in respect to the Securities and to file such other papers or
documents as may be necessary or advisable and to take any and all actions
as are authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under Section 607
and of the Holders allowed in any such judicial proceedings; and
(ii) and in particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 506; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee for distribution in accordance with Section 506, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
43
Section 505
Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities 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 of judgment shall, after
provision for the payment of all the amounts owing the Trustee and any predecessor Trustee under
Section 607, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506
Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect to a series of
Securities 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 or property on account of
principal (or premium, if any) or interest (including any Additional Interest), upon presentation
of the Securities of such series 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 607 with respect to the Securities of such series;
SECOND: In case the principal of the Securities of such series in respect of which such money
has been collected shall not have become and be then due and payable, to the payment of the
interest (including any Additional Interest) on the Securities in order of the maturity of the
installments of such interest, ratably, according to the amounts due and payable on such series of
Securities for such interest;
THIRD: In case the principal of the Securities of such series in respect of which such money
has been collected shall have become and shall be then due and payable, to the payment of the
amounts then due and unpaid upon such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), 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
amounts due and payable on such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), respectively; and
FOURTH: The balance, if any, to the Company or any other Person or Persons entitled thereto.
Section 507
Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
44
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that 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 reasonable indemnity 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 that 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 to affect, disturb
or prejudice the rights of any other Holders of Securities, or to obtain or to seek to obtain
priority or preference over any other of such 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 508
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right which is absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Section 307) interest (including any Additional Interest) on such Security
on the respective Stated Maturities expressed in such Security and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without the consent of such
Holder.
Section 509
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case the
Company, the Trustee and the Holders 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 the Holders shall continue as though no such proceeding had been
instituted.
45
Section 510
Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 507, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, 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 prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511
Delay or Omission Not Waiver.
Except as otherwise provided in the last paragraph of Section 507, no delay or omission of the
Trustee or of any Holder of any Security 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 the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512
Control by Holders.
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, provided that:
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the right to
decline to follow such direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders of Securities of such series not joining in any such
direction or would involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing the time, method or place of
conducting any such proceeding or exercising any such trust or power, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date shall be
established for determining Holders of Outstanding Securities of such series entitled to join in
such notice, which record date shall be at the close of business on the day the Trustee receives
such notice. The Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice,
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whether or not such Holders remain Holders after such record date; provided, that, unless the
Holders of a majority in principal amount of the Outstanding Securities of such series shall have
joined in such notice prior to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new notice identical to a notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 512.
Section 513
Waiver of Past Defaults.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, prior to the
declaration of the acceleration of the maturity of the Securities of any series as provided in
Section 502, the Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of such series waive
any past default with respect to such series specified in clauses (4) (if the default specified in
clause (4) relates to less than all series of Securities then outstanding) or (7) of Section 501
(each series voting as a separate class), and, in the case of an event specified in clauses (4) (if
the default specified in clause (4) relates to all series of Outstanding Securities), (5) or (6) of
Section 501, the Holders of a majority in principal amount of all Outstanding Securities of all
series (voting as one class) may waive any such default hereunder with respect to all such series,
except, in each case, a default:
(1) in the payment of the principal of (or premium, if any) or interest (including any
Additional Interest) or sinking fund installment on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine 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 Event of Default or impair any right
consequent thereon.
Section 514
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 an
undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’
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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 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 the Outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including any Additional Interest) on any Security
on or after the respective Stated Maturities expressed in such Security.
Section 515
Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives 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.
ARTICLE SIX
THE TRUSTEE
Section 601
Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct
except that
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(1) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of Holders pursuant to Section
512 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 with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602
Notice of Defaults.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, within 90 days
after actual knowledge by a Responsible Officer of the Trustee of 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, as their names and addresses appear in the Securities
Register, notice of such default hereunder known to 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, on), interest (including any Additional Interest) or sinking
fund on 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 determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and provided, further,
that, in the case of any default of the character specified in Section 501(4), no such notice to
Holders of Securities of such series shall be given until at least 30 days after the occurrence
thereof. For purposes 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 any
series.
Section 603
Certain Rights of Trustee.
Subject to the provisions of Section 601:
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(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) 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 be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel and the 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;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(f) 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, indenture, security or other paper or document, but the Trustee in its
discretion may make such inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney; and
(g) 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.
Section 604
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of the Securities or the proceeds thereof.
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Section 605
May Hold Securities.
The Trustee, any Paying Agent, Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Securities Registrar or such other agent.
Section 606
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 607
Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder in such amounts as the Company and the Trustee shall agree from
time to time (which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) 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 (including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense (including the reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith, arising out of or in
connection with the acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties
hereunder. This indemnification shall survive the resignation or removal of the Trustee,
and the defeasance or termination of this Indenture.
To secure the Company’s payment obligations in this Section, the Company and the Holders agree
that the Trustee shall have a lien prior to the Securities on all money or property held or
collected by the Trustee. Such lien shall survive the satisfaction and discharge of this
Indenture.
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When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 501(5) or 501(6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Reform Act of 1978 or a successor
statute.
Section 608
Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
Section 609
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the United States of America
or of any State, Territory or the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority, or
(b) a corporation or other Person organized and doing business under the laws of a foreign
government that is permitted to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust powers, and subject to
supervision or examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then, for the purpose of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the 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. Neither the Company nor any Person directly or
indirectly controlling, controlled by or under common control with the Company shall serve as
Trustee for the Securities of any series issued hereunder.
Section 610
Resignation and Removal; Appointment of Successor.
(a) 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 under Section 611.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If an instrument of
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acceptance by a successor Trustee 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 the Securities of
such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) 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 may remove the Trustee, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security 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 and the appointment of a successor Trustee.
(e) 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 shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security of such series for at least six
months may, subject to Section 514, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and addresses appear in the
Securities Register. 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.
Section 611
Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series 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, each 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 and 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 upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder
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with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
Section 612
Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto. 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, and in case any Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Securities either in
the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the
certificate of authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
Section 613
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
Section 614
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all times be a
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corporation organized and doing business under the laws of the United States of America, or of
any State, Territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, such Authenticating
Agent 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 trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. 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 provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned Indenture.
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after February 15 and August 15, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders as of such
February 1 and August 1, and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished, excluding from any such list names and
addresses received by the Trustee in its capacity as Securities Registrar.
Section 702
Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names and addresses of the Holders
made pursuant to the Trust Indenture Act.
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Section 703
Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act, at the times and in
the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more than 12 months shall
be dated as of May 15 and transmitted no later than July 15 in each calendar year, commencing with
the first May 15 after the first issuance of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which the Securities are listed and also with the
Commission. The Company will notify the Trustee whenever the Securities are listed on any stock
exchange.
Section 704
Reports by Company.
The Company shall file with the Trustee and with the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture Act. The
Company shall file with the Trustee all information, documents or reports that it is required to be
filed with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, within 15 days after the same is required to be filed with the Commission. The
Company also shall comply with the other provisions of Trust Indenture Act Section 314(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801
Company May Consolidate, Etc., Only on Certain Terms.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, the Company shall
not consolidate with, merge into or sell, convey, transfer or lease all or substantially all of its
properties and assets to any Person, and no Person shall consolidate with, merge into or sell,
convey, transfer or lease all or substantially all of its properties and assets to the Company,
unless:
(1) in the case the Company is the surviving Person or the Company shall consolidate
with, merge into or sell, convey, transfer or lease all or substantially all of its
properties and assets to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by sale, conveyance or transfer, or
which leases, all or substantially all of the properties and assets of the Company shall be
a Person organized and existing under the laws of the United States of America or any State
thereof or the District
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of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest (including any Additional
Interest) on all the Securities and the performance of every covenant and condition of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default, and no
event of which, after notice or lapse of time, or both, would become an Event of Default,
shall have occurred and be continuing; and
(3) the Company or the surviving Person has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and any such supplemental indenture complies with this
Article and that all conditions precedent herein provided for relating to such transaction
have been complied with; and the Trustee, subject to Section 601, may rely upon such
Officers’ Certificate and Opinion of Counsel as conclusive evidence that such transaction
complies with this Section 801;
provided, that, the provisions of this Section 801 shall not apply to any direct or indirect sale,
conveyance, transfer or lease of all or any portion of the capital stock, properties, assets or
liabilities of any wholly-owned Subsidiary to the Company or to any other wholly-owned Subsidiary.
Section 802
Successor Corporation Substituted.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, upon any
consolidation or merger by the Company with or into any other Person, or any sale, conveyance,
transfer or lease by the Company of all or substantially all of its properties and assets
substantially as an entirety to any Person in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which such sale, conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein; and in the event of any such sale, conveyance, transfer or lease,
the Company shall be discharged from all obligations and covenants under the Indenture and the
Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers of the Company to the Trustee for
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authentication pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had been issued at the
date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes
in phraseology and form may be made in the Securities thereafter to be issued as may be
appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901
Supplemental Indentures Without Consent of Holders.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any series, without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company under this Indenture and the Securities;
or
(2) to convey, transfer, assign, mortgage or pledge any property to or with the
Trustee as security for, or to defease, the Securities of one or more series or to
surrender any right or power under this Indenture conferred upon the Company; or
(3) to establish the form or terms of Securities of any series as permitted by
Sections 201 or 301; or
(4) to add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the
Company; or
(5) to add any additional Events of Default; or
(6) to change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall become effective only when there are no Securities
Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
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(7) to cure any ambiguity or defects, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided that such
action pursuant to this clause (7) shall not materially adversely affect the interest of
the Holders of Securities of any series; or
(8) 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 611(b); or
(9) to comply with the requirements of the Commission in order to effect or maintain
the qualification of this Indenture under the Trust Indenture Act.
Section 902
Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that, unless otherwise provided in the applicable
supplemental indenture or Board Resolution adopted pursuant to Section 301 establishing the terms
of the Securities of any series, no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 311 with respect to the extension of the
interest payment period of the Securities of any series, change the Stated Maturity of the
principal of, or any installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of interest thereon or reduce
any premium payable upon the redemption thereof, or reduce the amount of 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 502, or change the place of
payment where, or the coin or currency in which, any Security or interest thereon 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 date
fixed for redemption thereof), 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
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waiver (of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 513, 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 Security affected thereby, or
(4) modify the provisions in Article Thirteen of this Indenture with respect to the
subordination of Outstanding Securities of any series in a manner adverse to the Holders
thereof.
A supplemental indenture that changes or eliminates any covenant or other provision of this
Indenture that has expressly been included 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 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 903
Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that all conditions
precedent have been complied with. 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 904
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
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Section 906
Reference in Securities to Supplemental Indentures.
Securities 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 Board of Directors, 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.
ARTICLE TEN
COVENANTS
Section 1001
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of securities that it will
duly and punctually pay the principal of (and premium, if any) and interest on the Securities of
that series in accordance with the terms of such Securities and this Indenture.
Section 1002
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series, an office or agency where
Securities of that series may be presented or surrendered for payment and an office or agency where
Securities may be surrendered for transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company initially
appoints the Trustee, acting through its Corporate Trust Office, as its agent for said purposes.
The Company will give prompt written notice to the Trustee of any change in the location of any
such office or agency. If at any time the Company shall fail to maintain such 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, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all of such purposes, and may from time
to time rescind such designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation and any change in the location of any such office or
agency.
Section 1003
Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of (and premium, if
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any) or interest on any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of
as herein provided, and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of
the principal of or interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal and premium (if any) or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its failure so to
act.
The Company will cause each Paying Agent 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 will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any)
or interest on Securities in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities) in the making of any payment of principal (and premium, if any) or
interest;
(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; and
(4) comply with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or interest has become
due and payable shall (unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request to the Company, or (if then held by
the Company) shall (unless otherwise required by mandatory provision of applicable escheat or
abandoned or
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unclaimed property law) be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of Manhattan, The City of
New York, 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, any unclaimed balance of such
money then remaining will be repaid the Company.
Section 1004
Statement as to Compliance.
The Company shall deliver to the Trustee, on or before May 1 in each calendar year of the
Company ending after the date hereof, a written statement (which need not comply with Section 102),
signed by two of its officers (one of which shall be an officer specified in Section 314(a)(4) of
the Trust Indenture Act), stating that in the course of the performance of their duties as officers
of the Company they would normally have knowledge of any default by the Company in the performance
or fulfillment of any covenant, agreement or condition contained in this Indenture, stating whether
or not they have knowledge of any such default, and, if so, specifying each such default of which
the signers have knowledge and the nature thereof.
Section 1005
Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant or condition
specified pursuant to Section 301 with respect to the Securities of any series, if before or after
the time for such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101
Applicability of This Article.
Redemption of Securities (whether by operation of a sinking fund or otherwise) as permitted or
required by any form of Security issued pursuant to this Indenture shall be made in accordance with
such form of Security specified pursuant to Section 301 and this Article; provided, however, that
if any provision of any such form of Security shall conflict with any provision of this Article,
the provision of such form of Security shall
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govern. Except as otherwise set forth in the form of Security for such series, each Security
for such series shall be subject to partial redemption in the amount of $1,000 or integral
multiples thereof.
Section 1102
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 less than all of the
Securities of any particular series and having the same terms, the Company shall, not less than 30
nor more than 60 days prior to the date fixed for redemption (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such date and of the principal amount of
Securities of that series to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such Securities, the
Company shall furnish the Trustee with an Officers’ Certificate and an Opinion of Counsel
evidencing compliance with such restriction.
Section 1103
Selection of Securities to Be Redeemed.
If less than all the Securities of a particular series and having the same terms are to be
redeemed and such Securities are not Global Securities, the Trustee shall select, in the manner
specified in such Securities or specified pursuant to Section 301, or, if no manner is specified in
the Securities or pursuant to Section 301, as the Trustee shall select, not more than 60 days prior
to the date fixed for redemption, in such manner as in its sole discretion it shall deem
appropriate and fair, the Securities or portions thereof of such series to be redeemed. The
Trustee shall promptly notify the Company in writing of the Securities selected for partial
redemption and 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 Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed. If the Company shall
so direct, Securities registered in the name of the Company, any Affiliate or any Subsidiary
thereof shall not be included in the Securities selected for redemption.
Section 1104
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
thirty, nor more than sixty days, prior to the date fixed for redemption, to each Holder of
Securities to be redeemed, at the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of redemption shall
state:
(a) the date fixed for redemption for Securities of such series;
(b) the redemption price at which Securities of such series are to be redeemed;
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(c) if less than all Outstanding Securities of such particular series and having the same
terms are to be redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed;
(d) that on the date fixed for redemption, the redemption price at which such Securities are
to be redeemed will become due and payable upon each such Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for payment of the
redemption price at which such Securities are to be redeemed; and
(f) that the redemption is for a sinking fund, if such is the case.
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. The notice if mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice. In any case, a failure to
give such notice by mail or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Section 1105
Deposit of Redemption Price.
Prior to the redemption date specified in the notice of redemption given as provided in
Section 1104, the Company will deposit with the Trustee or with one or more paying agents an amount
of money sufficient to redeem on the redemption date all the Securities so called for redemption at
the applicable redemption price.
Section 1106
Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 1104, the Securities or
portion of Securities with respect to which such notice has been given shall become due and payable
on the date and at the place or places stated in such notice at the applicable redemption price.
On presentation and surrender of such Securities at a place of payment in said notice specified,
the said securities or the specified portions thereof shall be paid and redeemed by the Company at
the applicable redemption price. Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of the Security so
presented and having the same Original Issue Date, Stated Maturity and terms. If a Global Security
is so surrendered, such new Security will also be a new Global Security.
Section 1107
Company’s Right of Redemption.
Unless otherwise provided in the applicable supplemental indenture or Board Resolution adopted
pursuant to Section 301 establishing the terms of the Securities of any
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series and notwithstanding any additional redemption rights that may be so specified, the
Company may, at its option and at any time, redeem the Securities of any series, in whole or in
part, at a redemption price equal to 100% of the principal amount of such Securities being redeemed
plus accrued and unpaid interest, including any Additional Interest, to the date fixed for
redemption.
ARTICLE TWELVE
SINKING FUNDS
Section 1201
Applicability of Article.
If this Article has been specified in accordance with Section 301 to be applicable to the
Securities of any series, the provisions hereof shall be applicable to any sinking fund for the
retirement of Securities of any series unless otherwise provided in the applicable supplemental
indenture or Board Resolution adopted pursuant to Section 301 establishing the terms of the
Securities of any series.
The minimum amount of any sinking fund payment provided for by the terms of any Securities of
any series is herein referred to as a “mandatory sinking fund payment”, and any sinking fund
payment in excess of such minimum amount which is permitted to be made by the terms of such
Securities of any series is herein referred to as an “optional sinking fund payment”. If provided
for by the terms of any Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of such Securities.
Section 1202
Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option, at any time no more than 16 months
and no less than 30 days prior to the date on which such sinking fund payment is due, deliver to
the Trustee Securities of such series (together with the unmatured coupons, if any, appertaining
thereto) theretofore purchased or otherwise acquired by the Company, except Securities of such
series that have been redeemed through the application of mandatory or optional sinking fund
payments pursuant to the terms of the Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the Securities of such series
were originally issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by the Trustee at the
redemption price for such Securities, as specified in the Securities so to be redeemed, for
redemption through operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
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Section 1203
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section 301) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202. Such Certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the Company to deliver such
Certificate (or, as required by this Indenture, the Securities and coupons, if any, specified in
such Certificate), the sinking fund payment due on the succeeding sinking fund payment date for
such series shall be paid entirely in cash and shall be sufficient to redeem the principal amount
of the Securities of such series subject to a mandatory sinking fund payment without the right to
deliver or credit securities as provided in Section 1202 and without the right to make the optional
sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made with respect to the Securities of any
particular series shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such series at the
redemption price specified in such Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the Company is acting as
its own Paying Agent, segregated and held in trust as provided in Section 1003) for such series and
together with such payment (or such amount so segregated) shall be applied in accordance with the
provisions of this Section 1203. Any and all sinking fund moneys with respect to the Securities of
any particular series held by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 1003) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or by the Company if the Company is
acting as its own Paying Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the Securities of such
series at Maturity. The Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 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 1104.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 1106. On or before each sinking fund payment date, the Company
shall pay to the Trustee (or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 1003) in cash a sum in the currency in which
Securities of
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such series are payable (except as provided pursuant to Section 301) equal to the principal
and any interest accrued to the redemption date for Securities or portions thereof to be redeemed
on such sinking fund payment date pursuant to this Section 1203.
Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by operation of the sinking
fund for such series during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the securities of such series, except that if the
notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee
(or the Company if the Company is then acting as its own Paying Agent) shall redeem such Securities
if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the
Company) for that purpose in accordance with the terms of this Article Twelve. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during
the continuance of such default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case such default or
Event of Default shall have been cured or waived herein, such moneys shall thereafter be applied on
the next sinking fund payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 1203.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301
Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article and any form of Security specified pursuant to Section 301, the payment of the principal of
(and premium, if any) and interest (including any Additional Interest) on each and all of the
Securities are hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all amounts then due and payable in respect of all Senior Indebtedness, all as
further provided in this Article and in such form of Security; provided, however, that if any
provision of any such form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
Section 1302
Payment Over of Proceeds Upon Dissolution, Etc.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company (each such event, if any, herein sometimes referred to as a “Proceeding”), then the holders
of Senior Indebtedness shall be entitled to receive payment in full of principal of (and premium,
if any) and interest, if any, on such Senior
70
Indebtedness, or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the
Securities are entitled to receive or retain any payment or distribution of any kind or character,
whether in cash, property or securities (including any payment or distribution which may be payable
or deliverable by reason of the payment of any other debt of the Company (including any series of
the Securities) subordinated to the payment of the Securities, such payment or distribution being
hereinafter referred to as a “Junior Subordinated Payment”), on account of principal of (or
premium, if any) or interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any Subsidiary and to that end
the holders of Senior Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind of character, whether in cash, property or
securities, including any Junior Subordinated Payment, which may be payable or deliverable in
respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, including any Junior
Subordinated Payment, before all Senior Indebtedness is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, and if such fact shall, at or prior to the time of such payment or distribution, have
been made known to the Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words “any payment or distribution of any kind or
character, whether in 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 Person
provided for by a plan of reorganization or readjustment which securities are subordinated in right
of payment to all then outstanding Senior Indebtedness to substantially the same extent as the
Securities are so subordinated as provided in this Article. 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 sale of all or substantially all of its properties and assets as an entirety to
another Person or the liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for the purposes of this
Section if the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by sale such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, or sale comply with the conditions set forth in Article
Eight.
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Section 1303
Prior Payment to Senior Indebtedness Upon Acceleration of Securities.
In the event that any Securities are declared due and payable before their Stated Maturity,
then and in such event the holders of the Senior Indebtedness outstanding at the time such
Securities so become due and payable shall be entitled to receive payment in full of all amounts
due on or in respect of such Senior Indebtedness (including any amounts due upon acceleration), or
provision shall be made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or character, whether in cash,
properties or securities (including any Junior Subordinated Payment) by the Company on account of
the principal of (or premium, if any) or interest (including any Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with this Indenture or as otherwise provided in the applicable
supplemental indenture or Board Resolution adopted pursuant to Section 301 establishing the terms
of the Securities of any series by delivering and crediting pursuant to Section 1202 or as
otherwise specified pursuant to Section 301 for the Securities of any series Securities which have
been acquired (upon redemption or otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect to which Section
1302 would be applicable.
Section 1304
No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the payment of principal of (or
premium, if any) or interest on any Senior Indebtedness, or in the event that any event of default
with respect to any Senior Indebtedness shall have occurred and be continuing and shall have
resulted in such Senior Indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such acceleration shall have been
rescinded or annulled, or
(b) in the event any judicial proceeding shall be pending with respect to any such default in
payment or such event or default, then no payment or distribution of any kind or character, whether
in cash, properties or securities (including any Junior Subordinated Payment) shall be made by the
Company on account of principal of (or premium, if any) or interest (including any Additional
Interest), if any, on the Securities or on account of the purchase or other acquisition of
Securities by the Company or any
72
Subsidiary; provided, however, that nothing in this Section shall prevent the satisfaction of
any sinking fund payment in accordance with this Indenture or as otherwise specified pursuant to
Section 301 for the Securities of any series by delivering and crediting pursuant to Section 1202
or as otherwise specified pursuant to Section 301 for the Securities of any series Securities which
have been acquired (upon redemption or otherwise) prior to such default in payment or event of
default.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect to which Section
1302 would be applicable.
Section 1305
Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any Proceeding referred to
in Section 1302 or under the conditions described in Sections 1303 and 1304, from making payments
at any time of principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money or Government Obligations deposited with it hereunder to
the payment of or on account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such payment would have
been prohibited by the provisions of this Article.
Section 1306
Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, or the provision for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this
Article (equally and ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to Senior Indebtedness of the Company to substantially the same
extent as the Securities are subordinated to the Senior Indebtedness and is entitled to like rights
of subrogation by reason of any payments or distributions made to holders of such Senior
Indebtedness) to the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation or assignment, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or
the Trustee would be entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the
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Securities or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment or distribution
by the Company to or on account of the Senior Indebtedness.
Section 1307
Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall (a) impair, as between the Company and the Holders of
the Securities, the obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest (including any
Additional Interest) on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the Company of the Holders
of the Securities and creditors of the Company other than their rights in relation to the holders
of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this Indenture including,
without limitation, filing and voting claims in any Proceeding, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 1308
Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination provided in this Article and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
Section 1309
No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
Section 1310
Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, agent or representative therefor (whether or not the facts
contained in such notice
74
are true); provided, however, that if the Trustee shall not have received the notice provided
for in this Section at least two Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest (including any Additional Interest) on any
Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such monies and to apply the same to the purpose for which they
were received and shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
Section 1311
Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Article Six, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose
of ascertaining the Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness 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.
Section 1312
Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if
it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company
or to any other Person cash, property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
Section 1313
Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s
Rights.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Section 1314
Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee.
75
Section 1315
Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of junior securities upon
conversion or exchange of Securities shall not be deemed to constitute a payment or distribution on
account of the principal of (or premium, if any) or interest (including any Additional Interest) on
Securities or on account of the purchase or other acquisition of Securities, and (b) the payment,
issuance or delivery of cash, property or securities (other than junior securities) upon conversion
or exchange of a Security shall be deemed to constitute payment on account of the principal of such
security. For the purposes of this Section, the term “junior securities” means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are subordinated in
right of payment to all Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article.
* * * *
76
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
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THE CHUBB CORPORATION
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By:
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/s/ Michael O’Reilly
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Name:
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Michael O’Reilly
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Title:
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Vice Chairman and Chief Financial Officer
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[CORPORATE SEAL]
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Attest:
/s/ W. Andrew Macan
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Title: Vice
President and Secretary
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THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
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By:
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/s/ Benita A. Vaughn
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Name:
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Benita A. Vaughn
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Title:
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Vice President
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[CORPORATE SEAL]
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Attest:
/s/
George N. Reaves
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Title: Vice
President
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State of New Jersey
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County of Somerset
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ss.:
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On
March 29, 2007 before me personally came W. Andrew Macan, to me known, who being duly sworn,
did depose and say that he is Vice President of The Chubb Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
[NOTARIAL SEAL]
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/s/ Janice G. Murdoch
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Notary Public of New Jersey
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My Commission Expires: April 12, 2011
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State of New Jersey
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County of Somerset
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ss.:
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On
On March 29, 2007 before me personally came Michael O’Reilly to me known, who being duly sworn,
did depose and say that he is Vice Chairman of The Chubb Corporation, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
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/s/ Janice G. Murdoch
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Notary Public of New Jersey
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My Commission Expires: April 12, 2011
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State
of Illinois
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County
of Cook
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ss.:
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On March 28, 2007 before me, a notary public in and for said State, personally appeared Benita A.
Vaughn known to me to be a Vice President of The Bank of New York Trust Company, N.A.,
one of the entities that executed the within instrument, and also known to me to be the person who
executed it on behalf of said association, and acknowledged to me that such association executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
[NOTARIAL SEAL]
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/s/ Benita A. Vaughn
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Notary Public, State of Illinois
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My Commission Expires: June 23, 2010
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EXHIBIT 4.2
6.375 % Directly-Issued Subordinated Capital Securities (DISCS
SM
)
due 2067
FIRST SUPPLEMENTAL INDENTURE
between
THE CHUBB CORPORATION
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
Supplemental to Junior Subordinated Indenture
Dated as of March 29, 2007
Table of Contents
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Page
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ARTICLE 1
DEFINITIONS
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Section 1.01.
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Definitions
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1
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ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
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Section 2.01.
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Designation, Principal Amount and Authorized Denominations
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10
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Section 2.02.
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Repayment
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10
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Section 2.03.
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Form
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Section 2.04.
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Rate of Interest; Interest Payment Date
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Section 2.05.
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Interest Deferral
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Section 2.06.
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Alternative Payment Mechanism
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Section 2.07.
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Events of Default
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Section 2.08.
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Securities Registrar; Paying Agent; Delegation of Trustee Duties
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Section 2.09.
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Limitation on Claims in the Event of Bankruptcy, Insolvency or
Receivership
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Section 2.10.
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Location of Payment
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Section 2.11.
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No Sinking Fund
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Section 2.12.
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Subordination
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Section 2.13.
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Satisfaction, Discharge and Defeasance
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ARTICLE 3
COVENANTS
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Section 3.01.
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Dividend and Other Payment Stoppages
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Section 3.02.
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Additional Limitation on Deferral Over One Year
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ARTICLE 4
REDEMPTION OF THE DEBENTURES
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Section 4.01.
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Redemption
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Section 4.02.
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Redemption Price
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Section 4.03.
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Transfers and Exchanges
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ARTICLE 5
REPAYMENT OF DEBENTURES
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Section 5.01.
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Repayments
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Section 5.02.
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Selection of the Debentures to be Repaid
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Page
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Section 5.03.
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Notice of Repayment
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Section 5.04.
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Deposit of Repayment Amount
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Section 5.05.
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Repayment of Debentures
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ARTICLE 6
ORIGINAL ISSUE OF DEBENTURES
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Section 6.01.
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Calculation of Original Issue Discount
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ARTICLE 7
SUPPLEMENTAL INDENTURES
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Section 7.01.
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Supplemental Indentures Without Consent Of Holders
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Section 7.02.
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ARTICLE 8
MISCELLANEOUS
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Section 8.01.
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Effectiveness
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Section 8.02.
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Effect of Recitals
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Section 8.03.
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Ratification of Indenture
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Section 8.04.
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Tax Treatment
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Section 8.05.
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Governing Law
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Section 8.06.
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Severability
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ii
FIRST SUPPLEMENTAL INDENTURE, dated as of March 29, 2007 (the “First Supplemental Indenture”),
between THE CHUBB CORPORATION, a New Jersey corporation (the “Company”), having its principal
office at 15 Mountain View Road, Warren, NJ 07061, and THE BANK OF NEW YORK TRUST COMPANY, N.A., a
national banking association, as trustee (hereinafter called the “Trustee”).
RECITALS OF THE COMPANY
The Company and the Trustee entered into an Indenture, dated as of March 29, 2007 (as it may
from time to time be supplemented or amended, the “Indenture”). Section 901 of the Indenture
provides that the Company and the Trustee may, without the consent of any Holder, enter into a
supplemental indenture to establish the form or terms of Securities of any series as permitted by
Section 201 or 301 thereof.
Pursuant to Sections 201 and 301 of the Indenture, the Company desires to provide for the
establishment of a series of Securities under the Indenture, and the form and terms thereof, as
hereinafter set forth.
The Company has requested that the Trustee execute and deliver this First Supplemental
Indenture. The Company has delivered to the Trustee an Opinion of Counsel and an Officers’
Certificate pursuant to Sections 102, 303 and 903 of the Indenture to the effect, among other
things, that all conditions precedent provided for in the Indenture to the Trustee’s execution and
delivery of this First Supplemental Indenture have been complied with. All acts and things
necessary have been done and performed to make this First Supplemental Indenture enforceable in
accordance with its terms, and the execution and delivery of this First Supplemental Indenture has
been duly authorized in all respects.
NOW, THEREFORE: For and in consideration of the premises and the purchase of the Debentures
(as herein defined) by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE 1
DEFINITIONS
Section 1.01.
Definitions
. For all purposes of this First Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in the Indenture (as defined herein) have the same meaning when
used in this First Supplemental Indenture unless otherwise defined herein.
(b) The terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular.
(c) the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this First Supplemental Indenture as a whole and not to any particular Article,
Section or other subdivision, and any reference to an Article, Section or other subdivision
refers to an Article, Section or other subdivision of this First Supplemental Indenture.
(d) Any reference herein to “interest” shall include any Additional Interest.
In addition, the following terms used in this First Supplemental Indenture have the following
respective meanings:
“Additional Interest” means the interest, if any, that shall accrue on any interest on the
Debentures the payment of which has not been made on the applicable Interest Payment Date.
“APM Period” means, with respect to any Deferral Period, the period commencing on the earlier
of (i) the first Interest Payment Date following the commencement of such Deferral Period on which
the Company pays any current interest on the Debentures (which the Company may do from any source
of funds) or (ii) the fifth anniversary of the commencement of the Deferral Period, if on such date
such Deferral Period has not ended, and ending on the next Interest Payment Date on which the
Company raised an amount of Eligible Proceeds at least equal to the aggregate amount of accrued and
unpaid deferred interest, including Additional Interest, on the Debentures.
“APM Qualifying Securities” means Common Stock, Qualifying Preferred Stock, Qualifying
Warrants, and Mandatorily Convertible Preferred Stock.
“Applicable Spread” means, with respect to a redemption of the Debentures, 0.50% in the case
of a Tax Event or a Rating Agency Event and 0.25% in all other cases.
“Business Combination” means any transaction that is subject to Section 801 of the Indenture.
“Calculation Agent” means, with respect to the Debentures, The Bank of New York Trust Company,
N.A., or any other firm appointed by the Company, acting as calculation agent in respect of the
Debentures.
“Commercially Reasonable Efforts” to sell Qualifying Capital Securities means commercially
reasonable efforts to complete the offer and sale of Qualifying Capital Securities to Persons other
than Subsidiaries of the Company in public offerings or private placements. The Company shall not
be considered to have made Commercially Reasonable Efforts to effect a sale of Qualifying Capital
Securities if it determines not to pursue or complete such sale due to pricing, coupon, dividend
rate or dilution considerations.
“Commercially Reasonable Efforts” to sell APM Qualifying Securities means commercially
reasonable efforts to complete the offer and sale of APM Qualifying Securities to third parties
other than Subsidiaries of the Company in public offerings or private placements. The Company
shall not be considered to have made Commercially Reasonable Efforts to effect a
2
sale of APM Qualifying Securities if it determines not to pursue or complete such sale due to
pricing, coupon, dividend rate or dilution considerations.
“Common Stock” means the Company’s common stock (including treasury shares of common stock),
common stock of the Company issued pursuant to any dividend reinvestment plan or the Company’s
employee benefit plans, a security of the Company, ranking upon liquidation, dissolution or winding
up of the Company junior to Qualifying Preferred Stock and pari passu with the Company’s common
stock, that tracks the performance of, or relates to the results of, a business, unit or division
of the Company, and any securities issued in exchange therefore in connection with a merger,
consolidation, binding share exchange, business combination, recapitalization or other similar
event.
“Common Equity Issuance Cap” has the meaning specified in Section 2.06(a).
“Company” has the meaning specified in the Recitals.
“Continuing Director”, in respect of any transaction that may constitute a Business
Combination for purposes of this Agreement, means a director who was a director of the Company at
the time the definite agreement relating to such transaction was approved by the Board of
Directors.
“Current Stock Market Price” means, with respect to the Company’s common stock on any date,
(i) the closing sale price per share (or if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average of the average bid and the
average ask prices) on that date as reported in composite transactions by the New York Stock
Exchange or, (ii) if the Company’s common stock is not then listed on the New York Stock Exchange,
as reported by the principal U.S. securities exchange on which the Company’s common stock is traded
or quoted on the relevant date or, (iii) if the Company’s common stock is not listed on any U.S.
securities exchange on the relevant date, the last quoted bid price for the Company’s common stock
in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or
similar organization, or (iv) if the Company’s common stock is not so quoted, the average of the
mid-point of the last bid and ask prices for the Company’s common stock on the relevant date from
each of at least three nationally recognized independent investment banking firms selected by the
Company for this purpose.
“Debentures” has the meaning specified in Section 2.01.
“Deferral Period” means the period commencing on an Interest Payment Date with respect to
which the Company elects to defer interest pursuant to Section 2.05 and ending on the earlier of
(i) the tenth anniversary of that Interest Payment Date and (ii) the next Interest Payment Date on
which the Company has paid all deferred and unpaid amounts (including compounded interest on such
deferred amounts) and all other accrued interest on the Debentures.
“Eligible Proceeds” means, for each relevant Interest Payment Date, the net proceeds (after
underwriters’ or placement agents’ fees, commissions or discounts and other expenses relating to
the issuance or sale) the Company has received during the 180-day period prior to such Interest
Payment Date from the issuance or sale of APM Qualifying Securities
3
(excluding sales of Qualifying Preferred Stock and Mandatorily Convertible Preferred Stock in
excess of the Preferred Stock Issuance Cap) to persons that are not the Company’s Subsidiaries.
“Final Maturity Date” has the meaning specified in Section 2.02(b).
“First Supplemental Indenture” means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more agreements supplemental hereto.
“Floating Rate Interest Period” the period beginning on and including April 15, 2017 and
ending on but excluding the next Interest Payment Date and each successive period beginning on and
including an Interest Payment Date and ending on but excluding the next Interest Payment Date.
“Indenture” has the meaning specified in the Recitals.
“Interest Payment Dates” shall have the meaning specified in Section 2.04.
“Interest Period” means a Semi-Annual Interest Period or a Floating Rate Interest Period, as
the case may be.
“Libor Determination Date” means the second London Banking Day immediately preceding the first
day of the relevant Floating Rate Interest Period.
“London Banking Day” means any day on which commercial banks are open for general business
(including dealings in deposits in U.S. dollars) in London.
“Make-Whole Redemption Price” means, with respect to a redemption of the Debentures in whole
or in part, the present value of a principal payment on April 15, 2017 and scheduled payments of
interest that would have accrued from the Redemption Date to April 15, 2017 on the Debentures being
redeemed, discounted to the redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at a discount rate equal to the Treasury Rate (as determined
and provided to the Calculation Agent by the Treasury Dealer) plus the Applicable Spread, plus
accrued and unpaid interest to the redemption date, determined by the Calculation Agent.
“Mandatorily Convertible Preferred Stock” means Preferred Stock with (a) no prepayment
obligation on the part of the issuer thereof, whether at the election of the holders or otherwise,
and (b) a requirement that the Preferred Stock converts into the Company’s Common Stock within
three years from the date of its issuance at a conversion ratio within a range established at the
time of issuance of the Preferred Stock.
“Market Disruption Event” means, with respect to the issuance or sale of Qualifying Capital
Securities pursuant to Section 2.02 or APM Qualifying Securities pursuant to Section 2.05 or 2.06,
the occurrence or existence of any of the following events or sets of circumstances:
4
(i) Trading in securities generally, or shares of the Company’s securities
specifically, on the New York Stock Exchange or any other national securities exchange or in
the over-the-counter market on which the Common Stock or Qualifying Capital Securities, as
the case may be, are then listed or traded is suspended or the settlement of such trading
generally is materially disrupted or minimum prices are established on any such exchange or
market by the Commission, by the relevant exchange or by any other regulatory agency or
governmental body having jurisdiction and such suspension, disruption, or the establishment
of such minimum price, has a material adverse effect on trading in, and the issuance and
sale of, the Company’s Common Stock or Qualifying Capital Securities, as the case may be;
(ii) The Company would be required to obtain the consent or approval of the Company’s
stockholders or a regulatory body (including, without limitation, any securities exchange)
or governmental authority to issue or sell APM Qualifying Securities pursuant to Section
2.06 or to issue Qualifying Capital Securities pursuant to Section 2.02, as the case may be,
and such consent or approval has not yet been obtained notwithstanding the Company’s
commercially reasonable efforts to obtain such consent or approval;
(iii) A banking moratorium occurs or shall have been declared by the federal or state
authorities of the United States such that market trading in the APM Qualifying Securities
or the Qualifying Capital Securities, as applicable, is disrupted or has ceased;
(iv) A material disruption shall have occurred in commercial banking or securities
settlement or clearance services in the United States such that market trading in the APM
Qualifying Securities or the Qualifying Capital Securities, as applicable, is disrupted or
has ceased;
(v) The United States shall have become engaged in hostilities, there shall have been
an escalation in hostilities involving the United States, there shall have been a
declaration of a national emergency or war by the United States or there shall have occurred
any other national or international calamity or crisis such that market trading in the APM
Qualifying Securities or the Qualifying Capital Securities, as applicable, is disrupted or
has ceased;
(vi) There shall have occurred such a material adverse change in general domestic or
international economic, political or financial conditions, including, without limitation, as
a result of terrorist activities, or the effect of international conditions on the financial
markets in the United States shall be such that trading APM Qualifying Securities or
Qualifying Capital Securities, as applicable, shall have been materially disrupted or has
ceased;
(vii) An event occurs and is continuing as a result of which the offering document for
such offer and sale of APM Qualifying Securities or Qualifying Capital Securities, as the
case may be, would, in the reasonable judgment of the Company, contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and either (x)
5
the disclosure of that event at such time, in the reasonable judgment of the Company,
is not otherwise required by law and would have a material adverse effect on the business of
the Company or (y) the disclosure relates to a previously undisclosed proposed or pending
material business transaction, provided that no single suspension period contemplated by
this clause (vii) shall exceed 90 consecutive days and multiple suspension periods
contemplated by this clause (vii) shall not exceed an aggregate of 180 days in any 360-day
period; or
(viii) The Company reasonably believes that the offering document for such offer and
sale of APM Qualifying Securities or Qualifying Capital Securities, as the case may be,
would not be in compliance with a rule or regulation of the Commission (for reasons other
than those referred to in clause (vii) above), and the Company determines it is unable to
comply with such rule or regulation or such compliance is unduly burdensome, provided that
no single suspension period contemplated by this clause (viii) shall exceed 90 consecutive
days and multiple suspension periods contemplated by this clause (viii) shall not exceed an
aggregate of 180 days in any 360-day period.
“Pari Passu Securities” means indebtedness of the Company that ranks in right of payment upon
liquidation, dissolution or winding-up on a parity with the Debentures, and includes the
Debentures.
“Preferred Stock” means the preferred stock of the Company.
“Preferred Stock Issuance Cap” has the meaning specified in Section 2.06(a).
“Qualifying Preferred Stock” means the Company’s non-cumulative perpetual Preferred Stock that
ranks pari passu with or junior to all of the Company’s other Preferred Stock, other than Preferred
Stock that is issued or issuable pursuant to a stockholders’ rights plan or similar plan or
arrangement, is perpetual and (a) is subject to a Qualifying Capital Replacement Covenant (as such
term is defined in the Replacement Capital Covenant) or (b) is subject to both (i) mandatory
suspension of dividends in the event the Company breaches certain financial metrics specified
within the offering documents for such Preferred Stock and (ii) “Intent-Based Replacement
Disclosure” (as such term is defined in the Replacement Capital Covenant). Additionally, in both
(a) and (b) above, the transaction documents shall provide for no remedies as a consequence of
non-payment of distributions other than “Permitted Remedies” (as such term is defined in the
Replacement Capital Covenant).
“Qualifying Capital Securities” has the meaning specified in the Replacement Capital Covenant.
“Qualifying Warrants” means any net share settled warrants to purchase Common Stock that (1)
have an exercise price greater than the Current Stock Market Price of the Common Stock, and (2) the
Company is not entitled to redeem for cash and the holders of which are not entitled to require the
Company to purchase for cash in any circumstances.
“Quarterly Interest Payment Date” shall have the meaning specified in Section 2.04.
6
“Rating Agency Event” means a change by any nationally recognized statistical rating
organization within the meaning of Rule 15c3-1 under the Securities Exchange Act of 1934, as
amended, that currently publishes a rating for the Company (in this definition, a “rating agency”)
to its equity credit criteria for securities such as the Debentures, as such criteria was in effect
on March 26, 2007 (in this definition, the “current criteria”), which change results in (x) the
length of time for which such current criteria is scheduled to be in effect is shortened with
respect to the Debentures, or (y) a lower equity credit being given to the Debentures as of the
date of such change than the equity credit that would have been assigned to the Debentures as of
the date of such change by such rating agency pursuant to its current criteria.
“Regular Record Date” means (i) with respect to a Semi-Annual Interest Payment Date, on
October 1 or April 1, as any case may be, next preceding the relevant Interest Payment date, and
(ii) with respect any Quarterly Interest Payment Date, the 15th day preceding the relevant Interest
Payment Date.
“Repayment Date” means the Scheduled Maturity Date and each Quarterly Interest Payment Date
thereafter until the Company shall have repaid or redeemed all of the Debentures.
“Replacement Capital Covenant” means the Replacement Capital Covenant, dated as of March 29,
2007, by the Company, as the same may be amended or supplemented from time to time in accordance
with the provisions thereof and Section 2.02(a)(vii) hereof.
“Responsible Officer of the Paying Agent” means, with respect to The Bank of New York Trust
Company, N.A. in its capacity as Paying Agent, any officer within the corporate trust department
(or any successor department, unit or division of The Bank of New York Trust Company, N.A.)
assigned to the paying agent office of The Bank of New York Trust Company, N.A., in its capacity as
Paying Agent, who has direct responsibility for the administration of the Paying Agent functions of
the Indenture.
“Reuters Page LIBOR01” means the display so designated on the Reuters 3000 Xtra (or such other
page as may replace that page on that service, or such other service as may be nominated as the
information vendor, for the purpose of displaying rates or prices comparable to the London
Interbank Offered rate for U.S. dollar deposits).
“Scheduled Maturity Date” has the meaning specified in Section 2.02(a)(i).
“Securities Registrar” means, with respect to the Debentures, The Bank of New York Trust
Company, N.A., or any other firm appointed by the Company, acting as securities registrar for the
Debentures.
“Securities Registrar Office” means the office of the applicable Securities Registrar at which
at any particular time its corporate agency business shall principally be administered, which
office at the date hereof in the case of The Bank of New York Trust Company, N.A., in its capacity
as Securities Registrar under the Indenture, is located at 2 North Lasalle Street, Suite 1020,
Global Corporate Trust, Chicago, Illinois 60602.
7
“Semi-Annual Interest Payment Date” shall have the meaning specified in Section 2.04.
“Semi-Annual Interest Period” means the period beginning on and including March 29, 2007 and
ending on but excluding the first Interest Payment Date and each successive period beginning on and
including an Interest Payment Date and ending on but excluding the next Interest Payment Date until
April 15, 2017.
“Share Cap” has the meaning specified in Section 2.06.
“Tax Event” means the receipt by the Company of an opinion of counsel experienced in such
matters to the effect that, as a result of any: (i) amendment to or change (including any
prospective change) in the laws or regulations of the United States or any political subdivision or
taxing authority of or in the United States that is effective on or after March 29, 2007, (ii)
official administrative decision or judicial decision or administrative action or other official
pronouncement (including a private letter ruling, technical advice memorandum or other similar
pronouncement) by any court, government agency or regulatory authority interpreting or applying
those laws or regulations that is announced on or after March 29, 2007, or (iii) threatened
challenge asserted in connection with an audit of the Company or any of its Subsidiaries, or a
threatened challenge asserted in writing against any tax payer that has raised capital through the
issuance of securities that are substantially similar to the Debentures and which securities, as of
their issue date, were rated at least investment grade by a nationally recognized statistical
rating organization within the meaning of Rule 15c3-1 under the Exchange Act, there is more than an
insubstantial risk that interest payable by the Company on the Debentures is not, or within 90 days
of the date of such opinion will not be, wholly deductible by the Company for United States federal
income tax purposes.
“Three-Month LIBOR” means, with respect to any Floating Rate Interest Period, the rate
(expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period
commencing on the first day of that Floating Rate Interest Period that appears on Reuters Page
LIBOR01 as of 11:00 a.m., London time, on the LIBOR Determination Date for that Period. If such
rate does not appear on Reuters Page LIBOR01, Three-Month LIBOR will be determined on the basis of
the rates at which deposits in U.S. dollars for a three-month period commencing on the first day of
that Floating Rate Interest Period and in a principal amount of not less than $ 1,000,000 are
offered to prime banks in the London interbank market by four major banks in the London interbank
market selected by the Calculation Agent (after consultation with the Company), at approximately
11:00 a.m., London time, on the LIBOR Determination Date for that Floating Rate Interest Period.
The Calculation Agent will request the principal London office of each of these banks to provide a
quotation of its rate. If at least two such quotations are provided, Three-Month LIBOR with
respect to that Floating Rate Interest Period will be the arithmetic mean (rounded upward if
necessary to the nearest whole multiple of 0.00001%) of such quotations. If fewer than two
quotations are provided, Three-Month LIBOR with respect to that Floating Rate Interest Period will
be the arithmetic mean (rounded upward if necessary to the nearest whole multiple of 0.00001%) of
the rates quoted by three major banks in New York City selected by the Calculation Agent (after
consultation with the Company), at approximately 11:00 a.m., New York City time, on the first day
of that Floating Rate Interest Period for loans in U.S. dollars to leading European banks for a
three-
8
month period commencing on the first day of that Floating Rate Interest Period and in a
principal amount of not less than $ 1,000,000. However, if fewer than three banks selected by
the Calculation Agent to provide quotations are quoting as described above, Three-Month LIBOR for
that Floating Rate Interest Period will be the same as Three-Month LIBOR as determined for the
previous Floating Rate Interest Period or, in the case of the Floating Rate Interest Period
beginning on April 15, 2017, 6.375%. The establishment of Three-Month LIBOR for each Floating Rate
Interest Period by the Calculation Agent shall (in the absence of manifest error) be final and
binding.
“Trading Day” means a day on which Common Stock is traded on the New York Stock Exchange, or
if not then listed on the New York Stock Exchange, a day on which Common Stock is traded or quoted
on the principal U.S. securities exchange on which it is listed or quoted, or if not then listed or
quoted on a U.S. securities exchange, a day on which Common Stock is quoted in the over-the-counter
market.
“Treasury Dealer” means Citigroup Global Markets Inc. (or its successor) or, if Citigroup
Global Markets Inc. (or its successor) refuses to act as Treasury Dealer for the purpose of
determining the Make-Whole Redemption Price or ceases to be a primary U.S. Government securities
dealer, another nationally recognized investment banking firm that is a primary U.S. Government
securities dealer specified by the Company for these purposes.
“Treasury Price” means, with respect to a Redemption Date, the bid-side price for the Treasury
Security as of the third Trading Day preceding the Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve Bank of New York on
that Trading Day and designated “Composite 3:30 p.m. Quotations for U.S. Government Securities,”
as determined by the Treasury Dealer, except that: (i) if that release (or any successor release)
is not published or does not contain that price information on that Trading Day, or (ii) if the
Treasury Dealer determines that the price information is not reasonably reflective of the actual
bid-side price of the Treasury Security prevailing at 3:30 p.m., New York City time, on that
Trading Day, then Treasury Price will instead mean the bid-side price for the Treasury Security at
or around 3:30 p.m., New York City time, on that Trading Day (expressed on a next Trading Day
settlement basis) as determined by the Treasury Dealer through such alternative means as are
commercially reasonable under the circumstances.
“Treasury Rate” means, with respect to a Redemption Date, the semi-annual equivalent yield to
maturity of the Treasury Security that corresponds to the Treasury Price (calculated by the
Treasury Dealer in accordance with standard market practice and computed as of the second Trading
Day preceding the Redemption Date).
“Treasury Security” means the United States Treasury security that the Treasury Dealer
determines would be appropriate to use, at the time of determination and in accordance with
standard market practice, in pricing the Debentures being redeemed in a tender offer based on a
spread to United States Treasury yields.
9
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.01.
Designation, Principal Amount and Authorized Denominations
. (a)
Designation. Pursuant to Sections 201 and 301 of the Indenture, there is hereby established a
series of Securities of the Company designated as the 6.375% Directly-Issued Subordinated Capital
Securities (DISCS
SM
) due 2067 (the “Debentures”), the principal amount of
which to be issued shall be in accordance with Section 2.01(b) hereof and as set forth in any
Company Order for the authentication and delivery of Debentures pursuant to the Indenture, and the
form and terms of which shall be as set forth hereinafter.
(b) Principal Amount. Debentures in an initial aggregate principal amount of
$1,000,000,000 shall, upon execution of this First Supplemental Indenture, be executed by
the Company and delivered to the Trustee or an Authenticating Agent for authentication, and
the Trustee or an Authenticating Agent shall thereupon authenticate and deliver said
Debentures in accordance with a Company Order. Additional Debentures may be issued pursuant
to this First Supplemental Indenture on the same terms and conditions as the Debentures
issued under this First Supplemental Indenture in all respects, except for any difference in
the issue date, issue price and interest accrued prior to the issue date of the additional
Debentures, and with the same CUSIP number as the Debentures issued under this First
Supplemental Indenture so long as such additional Debentures are fungible for U.S. tax
purposes with the Debentures issued as of the date of this First Supplemental Indenture.
Any additional Debentures issued under this First Supplemental Indenture will rank equally
and ratably in right of payment with the Debentures issued on the date of this First
Supplemental Indenture and together will be treated as a single series of Debentures for all
purposes under the Indenture and this First Supplemental Indenture.
(c) Authorized Denominations. The denominations in which Debentures shall be issuable
is $1,000 principal amount and integral multiples thereof.
Section 2.02.
Repayment
.
(a) Scheduled Maturity Date.
(i) The principal amount of, and all accrued and unpaid interest on, the
Debentures shall be payable in full on April 15, 2037 or, if such day is not a
Business Day, the following Business Day (the “Scheduled Maturity Date”); provided,
however, that in the event the Company has delivered an Officers’ Certificate to the
Trustee pursuant to clause (v) of this Section 2.02(a) in connection with the
Scheduled Maturity Date, (x) the principal amount of Debentures payable on the
Scheduled Maturity Date, if any, shall be the principal amount set forth in the
notice of repayment, if any, accompanying such Officers’ Certificate, (y) such
principal amount of Debentures shall be repaid on the Scheduled Maturity Date
pursuant to Article 5 hereof, and (z) subject to clause (ii) of this Section
2.02(a), the remaining Debentures shall remain Outstanding and
10
shall be payable on the immediately succeeding Quarterly Interest Payment Date
or such earlier date on which they are redeemed pursuant to Article 4 hereof, become
due and payable pursuant to Section 502 of the Indenture or on the Final Maturity
Date.
(ii) In the event the Company has delivered an Officers’ Certificate to the
Trustee pursuant to clause (v) of this Section 2.02(a) in connection with any
Quarterly Interest Payment Date, the principal amount of the Debentures repayable on
such Quarterly Interest Payment Date shall be the principal amount set forth in the
notice of repayment, if any, accompanying such Officers’ Certificate, and shall be
repaid on such Quarterly Interest Payment Date pursuant to Article 5 hereof, and the
remaining Debentures shall remain Outstanding and shall be payable on the
immediately succeeding Quarterly Interest Payment Date or such earlier date on which
they are redeemed pursuant to Article 4 hereof, become due and payable pursuant to
Section 502 of the Indenture or on the Final Maturity Date.
(iii) The obligation of the Company to repay the Debentures pursuant to this
Section 2.02(a) on any date prior to the Final Maturity Date shall be subject to its
obligations under Article Thirteen of the Indenture to the holders of Senior
Indebtedness.
(iv) Until the Debentures are paid in full:
(A) the Company shall use Commercially Reasonable Efforts, subject to a
Market Disruption Event, to raise sufficient net proceeds from the issuance
of Qualifying Capital Securities during a 180-day period ending on the date
on which the Company delivers the notice required by clause (v) of this
Section 2.02(a) and Section 5.01 (not more than 15 and not less than 10
Business Days prior to the Scheduled Maturity Date) to permit repayment of
the Debentures in full on the Scheduled Maturity Date pursuant to clause (i)
of this Section 2.02(a); and
(B) if the Company is unable for any reason to raise sufficient
proceeds from the issuance of Qualifying Capital Securities to permit
repayment in full of the Debentures on the Scheduled Maturity Date or any
subsequent Quarterly Interest Payment Date, the Company shall use
Commercially Reasonable Efforts, subject to a Market Disruption Event, to
raise sufficient proceeds from the issuance of Qualifying Capital Securities
during a 90-day period ending on the date on which the Company delivers the
notice required by clause (v) of this Section 2.02(a) and Section 5.01 (not
more than 15 and not less than 10 Business Days prior to the following
Quarterly Interest Payment Date) to permit repayment of the Debentures in
full on such following Quarterly Interest Payment Date pursuant to clause
(i)(z) of this Section 2.02(a); and
11
(C) the Company shall apply any net proceeds from the issuance of
Qualifying Capital Securities to the repayment of the Debentures as provided
in clause (vi) of this Section 2.02(a).
(v) The Company shall, if it has not raised sufficient net proceeds from the
issuance of Qualifying Capital Securities pursuant to clause (iv) above in
connection with any Repayment Date, deliver an Officers’ Certificate to the Trustee
(which Officers’ Certificate shall be forwarded by the Trustee to each Holder of
Debentures) no more than 15 and no less than 10 Business Days in advance of such
Repayment Date stating the amount of net proceeds, if any, raised pursuant to clause
(iv) above in connection with such Repayment Date. The Company shall be excused
from its obligation to use Commercially Reasonable Efforts to sell Qualifying
Capital Securities pursuant to clause (iv) above if such Officers’ Certificate
further certifies that: (A) a Market Disruption Event was existing during the
180-day period preceding the date of such Officers’ Certificate or, in the case of
any Repayment Date after the Scheduled Maturity Date, the 90-day period preceding
the date of such Officers’ Certificate; and (B) either (a) the Market Disruption
Event continued for the entire 180-day period or 90-day period, as the case may be,
or (b) the Market Disruption Event continued for only part of the period but the
Company was unable after Commercially Reasonable Efforts to raise sufficient net
proceeds during the rest of that period to permit repayment of the Debentures in
full. Each Officers’ Certificate delivered pursuant to this clause (v), unless no
principal amount of Debentures is to be repaid on the applicable Repayment Date,
shall be accompanied by a notice of repayment pursuant to Section 5.01 setting forth
the principal amount of the Debentures to be repaid on such Repayment Date, if any,
which amount shall be determined after giving effect to clause (vi) of this Section
2.02(a).
(vi) Net proceeds of the issuance of any Qualifying Capital Securities that the
Company is permitted to apply to repayment of the Debentures on any Repayment Date
will be applied, first, to pay deferred interest (including Additional Interest) to
the extent of Eligible Proceeds raised pursuant to Section 2.06, second, to pay
current interest to the extent not paid from other sources and, third, to repay the
Outstanding principal of the Debentures, subject to a minimum principal amount of $5
million to be repaid on any Repayment Date; provided that if the Company is
obligated to sell Qualifying Capital Securities and apply the net proceeds to
payments of principal of or interest on any outstanding securities, in addition to
the Debentures then on any date and for any period the amount of net proceeds
received by the Company from those sales and available for such payments shall be
applied to the Debentures and those other outstanding securities having the same
scheduled maturity date as the Debentures, pro rata in accordance with their
respective Outstanding principal amounts and none of such net proceeds shall be
applied to any other securities having a later scheduled maturity date until the
principal of and all accrued and unpaid interest on the Debentures has been paid in
full. If the Company raises less than $5 million of net proceeds from the sale of
Qualifying Capital Securities during the relevant 180-day or 90-day period, the
Company will not be required to repay any
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Debentures on the Scheduled Maturity Date or the next Quarterly Interest
Payment Date, as applicable, but will use those net proceeds to repay the Debentures
on the next Quarterly Interest Payment Date as of which the Company has raised at
least $5 million of net proceeds.
(vii) The Company shall not amend the Replacement Capital Covenant to impose
additional restrictions on the type or amount of Qualifying Capital Securities that
the Company may include for purposes of determining whether or to what extent
repayment, redemption or purchase of the Debentures is permitted, except with the
consent of Holders of at least a majority in aggregate Outstanding principal amount
of the Debentures. Except as aforesaid, the Company may amend or supplement the
Replacement Capital Covenant in accordance with its terms and without the consent of
the Holders of the Debentures.
(b) Final Maturity Date. The principal of, and all accrued and unpaid interest on, all
Outstanding Debentures shall be due and payable on March 29, 2067 or, if such date is not a
Business Day, the following Business Day (the “Final Maturity Date”), regardless of the
amount of Qualifying Capital Securities the Company may have issued and sold by that time.
Section 2.03.
Form
. The Debentures shall be substantially in the form of Exhibit A
attached hereto and shall be issued in fully registered definitive form without interest coupons.
Principal of and interest on the Debentures issued in definitive form will be payable, the transfer
of such Debentures will be registrable and such Debentures will be exchangeable for Debentures
bearing identical terms and provisions and notices and demands to or upon the Company in respect of
the Debentures and the Indenture may be served at the Corporate Trust Office of the Trustee, and
the Company appoints the Trustee as its agent for the foregoing purposes, provided that payment of
interest may be made at the option of the Company by check mailed to the Holders at such address as
shall appear in the Securities Register or by wire transfer in immediately available funds to the
bank account number of the Holders specified in writing by the Holders not less than 10 days before
the relevant Interest Payment Date and entered in the Securities Register by the Securities
Registrar. The Debentures may be presented for registration of transfer or exchange at the
Securities Registrar Office. The Debentures are initially solely issuable as Global Securities.
Registered Debentures shall be physically transferred to all beneficial owners in definitive form
in exchange for their beneficial interests in a Global Security if the Depositary with respect to
such Global Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or the Depositary ceases to be a clearing agency registered
under the Securities Act of 1934, as the case may be, and a successor Depositary is not appointed
by the Company within 90 days of such notice.
In addition, beneficial interests in the Global Securities may be exchanged for definitive
certificated Debentures upon request by or on behalf of the Depositary in accordance with customary
procedures following the request of a beneficial owner seeking to exercise or enforce its rights
under such Debentures. If the Company determines at any time that the Debentures shall no longer
be represented by a Global Security, the Company shall inform the Depositary of such determination
who will, in turn, notify participants of their right to withdraw their beneficial interest from
the Global Security. If such participants then elect to withdraw their
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beneficial interests, the Company shall issue certificates in definitive form in exchange for
such beneficial interests in the Global Security. Any Global Security, or portion thereof, that is
exchangeable pursuant to this Section 2.03 shall be exchangeable for Debenture certificates, as the
case may be, registered in the names directed by the Depositary.
Section 2.04.
Rate of Interest; Interest Payment Date
.
(a) Rate of Interest. The Debentures shall bear interest from and including March 29,
2007 to but excluding April 15, 2017 or earlier redemption date of the Debentures, at the
rate of 6.375% per annum, payable as set forth in clause (b) below computed on the basis of
a 360-day year comprised of twelve 30-day months. Commencing on April 15, 2017, the
Debentures shall accrue interest at an annual rate of Three-Month LIBOR plus 2.25% (the
“Floating Rate”), payable as set forth in clause (b) below. The amount of Floating Rate
interest payable on the Debentures for any Floating Rate Interest Period will be computed on
the basis of a 360-day year and the actual number of days elapsed in the 360-day year.
Amounts scheduled for payment but not paid upon any Interest Payment Date, including amounts
not required to be paid due to deferral under the terms of this First Supplemental
Indenture, shall bear Additional Interest from the originally scheduled payment date
therefor at the rate borne by the Debentures, provided that if a scheduled Semi-Annual
Interest Payment Date is not a Business Day, such Semi-Annual Interest Payment Date shall be
postponed to the next succeeding day that is a Business Day, and no interest will accrue as
a result of that postponement. If a scheduled Quarterly Interest Payment Date is not a
Business Day, such Quarterly Interest Payment Date shall be postponed to the next succeeding
day that is a Business Day; provided that if such Business Day is in the next succeeding
calendar month, such Quarterly Interest Payment Date shall be the immediately preceding
Business Day. Interest will accrue from and including the last date in respect of which
interest has been paid or duly provided for to but excluding the Interest Payment Date on
which the interest is actually paid, except as otherwise provided above with respect to
extensions to the next Business Day.
(b) Interest Payment Dates. Subject to the other provisions hereof, interest on the
Debentures shall be payable (i) semi-annually in arrears on October 15 and April 15 of each
year, commencing on October 15, 2007, until April 15, 2017 (each such date, a “Semi-Annual
Interest Payment Date”) and (ii) thereafter, quarterly in arrears on January 15, April 15,
July 15 and October 15 of each year, commencing on July 15, 2017 (each such date, a
“Quarterly Interest Payment Date” and, together with Semi-Annual Interest Payment Dates,
each, an “Interest Payment Date”).
(c) Interest will be payable to the Persons in whose name the Debentures are registered
at the close of business on the Regular Record Date next preceding the relevant Interest
Payment Date, except that interest payable at maturity shall be paid to the Person to whom
principal is paid.
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Section 2.05.
Interest Deferral
.
(a) Option to Defer Interest Payments.
(i) So long as no Event of Default with respect to the Debentures has occurred
and is continuing, the Company shall have the right at one or more times, to defer
the payment of interest on the Debentures for one or more consecutive Interest
Periods that do not exceed 10 years, provided that no Deferral Period shall extend
beyond the Final Maturity Date, the earlier accelerated maturity date of the
Debentures or other repayment or redemption in full of the Debentures. If the
Company has paid all deferred interest (including Additional Interest) on the
Debentures, the Company shall have the right to elect to begin a new Deferral Period
pursuant to this Section 2.05.
(ii) At the end of any Deferral Period, the Company shall pay all deferred
interest on the Debentures to the Persons in whose names the Debentures are
registered in the Securities Register at the close of business on the Regular Record
Date with respect to the Interest Payment Date at the end of such Deferral Period.
(iii) The Company may elect to pay interest on any Interest Payment Date during
any Deferral Period to the extent permitted by Section 2.05(b).
(b) Payment of Deferred Interest. The Company will not pay any deferred interest
(including Additional Interest) on the Debentures from any source other than Eligible
Proceeds prior to the Final Maturity Date, except at any time that the principal amount has
been accelerated and such acceleration has not been rescinded or in the case of a Business
Combination to the extent described below in this Section 2.05(c). Notwithstanding the
foregoing, the Company may pay current interest from any available funds.
(c) Business Combination Exception. If the Company is involved in a Business
Combination where immediately after its consummation more than 50% of the voting stock of
the Person formed by such Business Combination, or the Person that is the surviving or
resulting entity of such Business Combination, or the Person to whom all or substantially
all of the Company’s property or assets are conveyed, transferred or leased in such Business
Combination, is owned by the shareholders of the other party to such Business Combination or
Person to whom all or substantially all of the Company’s property or assets are conveyed,
transferred or leased, or Continuing Directors cease for any reason to constitute a majority
of the directors of the surviving or resulting entity or Person to whom all or substantially
all of the Company’s property or assets are conveyed, transferred or leased, then Section
2.05(b) and Section 2.06 shall not apply to any Deferral Period that is terminated on the
next Interest Payment Date following the date of consummation of such Business Combination.
(d) Notice of Deferral. The Company shall give written notice of its election to
commence or continue any Deferral Period to the Trustee and the Holders of the
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Debentures at least one Business Day and not more than sixty Business Days before the
next Interest Payment Date. Notice of the Company’s election of a Deferral Period shall be
given to the Trustee and each Holder of Debentures at such Holder’s address appearing in the
Security Register by first-class mail, postage prepaid.
Section 2.06.
Alternative Payment Mechanism
.
(a) Obligation to Issue APM Qualifying Securities. During the APM Period, the Company
shall, subject to the occurrence and continuation of a Market Disruption Event as described
under Section 2.06(b) and subject to Section 2.05(b) and Section 2.06(c), use its
Commercially Reasonable Efforts to sell APM Qualifying Securities until the Company has
raised an amount of Eligible Proceeds at least equal to the aggregate amount of accrued and
unpaid deferred interest on the Debentures, including Additional Interest, and apply such
Eligible Proceeds on the next Interest Payment Date to the payment of deferred interest in
accordance with this Section 2.06, provided that:
(i) the Company shall not be required to pay interest on the Debentures (and
therefore the Company shall not be required to issue APM Qualifying Securities to
raise proceeds to pay such interest) at a time when the payment of such interest
would violate the terms of any securities issued by the Company or any Subsidiary
that is senior to the Debentures in right of payment upon liquidation, dissolution
or winding-up of the Company;
(ii) the Company shall not be required to issue Common Stock prior to the fifth
anniversary of the commencement of a Deferral Period to the extent that the number
of shares of Common Stock issued during such Deferral Period together with the
number of shares of Common Stock previously issued or issuable upon exercise of
Qualifying Warrants previously issued during such Deferral Period applied to pay
deferred interest on the Debentures pursuant to this Section 2.06 would exceed an
amount equal to 2% of the total number of issued and outstanding shares of Common
Stock as of the date of the Company’s then most recent publicly available
consolidated financial statements immediately prior to the date of such issuance
(the “Common Equity Issuance Cap”); provided that the Common Equity Issuance Cap
will cease to apply with respect to a Deferral Period following the fifth
anniversary of the commencement of that Deferral Period, at which point the Company
must pay any deferred interest, regardless of the time at which it was deferred,
pursuant to this Section 2.06, subject to a Market Disruption Event and the Share
Cap (defined below); and provided, further, that if the Common Equity Issuance Cap
is reached during a Deferral Period and the Company subsequently pays all deferred
interest, the Common Equity Issuance Cap will cease to apply with respect to a
Deferral Period at the termination of such Deferral Period and will not apply again
unless and until the Company starts a new Deferral Period;
(iii) the Company shall not be required to issue Qualifying Preferred Stock and
Mandatorily Convertible Preferred Stock to the extent that the net proceeds of any
issuance of Qualifying Preferred Stock and Mandatorily
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Convertible Preferred Stock, together with the net proceeds of all prior
issuances of Qualifying Preferred Stock and any still-outstanding Mandatorily
Convertible Preferred Stock applied to pay interest on the Debentures pursuant to
this Section 2.06 during the current and all prior Deferral Periods, would exceed
25% of the aggregate principal amount of the Debentures (the “Preferred Stock
Issuance Cap”);
(iv) the sale of Qualifying Warrants to pay deferred interest is an option that
may be exercised at the Company’s sole discretion, subject to the Share Cap, and the
Company is not obligated to sell Qualifying Warrants or to apply the proceeds of any
such sale to pay deferred interest on the Debentures, and no class of investors of
the Company’s securities, or any other party, may require the Company to issue
Qualifying Warrants; and
(v) notwithstanding the Common Equity Issuance Cap and the Preferred Stock
Issuance Cap, for purposes of paying deferred interest, the Company shall not be
permitted, subject to the provisions below, to sell Common Stock, Qualifying
Warrants, or Mandatorily Convertible Preferred Stock such that the Common Stock to
be issued (or which would be issuable upon exercise or conversion thereof) would be
in excess of 169 million shares (as adjusted for any stock split, stock dividend,
reclassification, recapitalization, split-up, combination, exchange of shares or
similar transaction) or as described in the following paragraph (the “Share Cap”).
The Share Cap limitation shall apply so long as the Debentures remain Outstanding. At
any time that interest has been deferred under the Debentures and remains unpaid, the
Company shall use its commercially reasonable efforts to (1) raise the Share Cap such that
it is at least equal to three times the number of shares of common stock that the Company
would need to issue to raise sufficient proceeds to pay (assuming a price per share equal to
the average trading price of shares of Common Stock over the ten-trading day period
preceding such date) then outstanding deferred interest (including Additional Interest) on
the Debentures up to a maximum of ten years of interest (including Additional Interest) or
(2) if the Company cannot increase the Share Cap pursuant to the preceding clause (1),
obtain shareholder consent at the next annual shareholders meeting to increase the number of
shares of the Company’s authorized common stock for purposes of satisfying the Company’s
obligations to pay deferred interest. For purposes of determining the amounts accruing
during a floating rate period, the interest will be computed by reference to spot
three-month LIBOR on the calculation date plus a margin equal to 2.25%.
For the avoidance of doubt, once the Company reaches the Common Equity Issuance Cap for
a Deferral Period, although the Company shall not be required to issue more Common Stock
pursuant to this Section 2.06(a) prior to the fifth anniversary of the commencement of a
Deferral Period even if the amount referred to in clause (ii) of this Section 2.06(a)
subsequently increases because of a subsequent increase in the number of outstanding shares
of Common Stock, the Company shall have the right to do so.
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(b) Market Disruption Event. Section 2.06(a) shall not apply, with respect to any
Interest Payment Date, if the Company shall have provided to the Trustee no more than 15 and
no less than 10 Business Days prior to such Interest Payment Date an Officers’ Certificate
(which the Trustee will promptly forward upon receipt to each Holder of Debentures) stating
that (i) a Market Disruption Event was existing after the immediately preceding Interest
Payment Date and (ii) either (A) the Market Disruption Event continued for the entire period
from the Business Day immediately following the preceding Interest Payment Date to the
Business Day immediately preceding the date on which such Officers’ Certificate is provided
or (B) the Market Disruption Event continued for only part of this period, but the Company
was unable after commercially reasonable efforts to raise sufficient Eligible Proceeds
during the rest of that period to pay all accrued and unpaid deferred interest.
(c) Partial Payment of Deferred Interest.
(i) If the Company has raised some but not all Eligible Proceeds necessary to
pay all deferred interest, including Additional Interest, on any Interest Payment
Date, such Eligible Proceeds shall be allocated to pay accrued and unpaid interest
on the applicable Interest Payment Date in chronological order based on the date
each payment was first deferred, subject to the Common Equity Issuance Cap, the
Preferred Stock Issuance Cap, and the Share Cap, as applicable, and payment on each
installment of deferred interest shall be distributed to Holders of the Debentures
on a pro rata basis.
(ii) If the Company has outstanding Pari Passu Securities under which the
Company is obligated to sell securities that are APM Qualifying Securities and apply
the net proceeds to the payment of deferred interest or distributions, then on any
date and for any period the amount of net proceeds received by the Company from
those sales and available for payment of the deferred interest and distributions
shall be applied to the Debentures and those other Pari Passu Securities on a pro
rata basis up to the Common Equity Issuance Cap, the Preferred Stock Issuance Cap
and the Share Cap (or comparable provisions in the instruments governing those other
Pari Passu Securities) in proportion to the total amounts that are due on the
Debentures and such other Pari Passu Securities.
(d) Qualifying Warrants. If the Company sells Qualifying Warrants to pay deferred
interest to satisfy its obligations pursuant to this Section 2.06, the Company shall use
commercially reasonable efforts, subject to the Share Cap, to set the terms of such
Qualifying Warrants so as to raise sufficient proceeds from their issuance to pay all
deferred interest on the Debentures in accordance with this Section 2.06.
Section 2.07.
Events of Default
. (a) (i) Solely for purposes of the Debentures,
Section 501 of the Indenture shall be deleted and replaced by the following:
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Section 5.01.
Events of Default
“Event of Default”, wherever used herein with respect to the Debentures,
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):
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(1)
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default in the payment of interest, including
Additional Interest, in full on any Debentures for a period of 30
days after the conclusion of a 10-year period following the
commencement of any Deferral Period if at such time such Deferral
Period has not ended, or on the Final Maturity Date;
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(2)
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default in the payment of principal on the
Debentures when due, whether at the Stated Maturity, upon
redemption, upon a declaration of acceleration, or otherwise,
subject to the limitations set forth in Section 2.02 of this First
Supplemental Indenture; or
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(3)
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the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
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(4)
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the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or
State
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law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action.
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When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in clauses (3) and (4) set forth in this Section
5.01, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
(ii) Solely for purposes of the Debentures, Section 502 of the Indenture shall
be deleted and replaced by the following:
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default set forth in Section 501 of the Indenture, as amended by
Section 2.07 of this First Supplemental Indenture, with respect to the
Debentures occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debentures may declare the principal amount of all of the
Outstanding Debentures and interest accrued thereon, if any, to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such amount
shall become immediately due and payable; provided that the payment of
principal and interest, including Additional Interest, on the Debentures
shall remain subordinated to the extent provided in Section 2.12 of this
First Supplemental Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as provided in Article Five of
the Indenture, the Holders of a majority in aggregate principal amount of
the Outstanding Debentures, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
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(1)
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the Company has paid or deposited with the
Trustee a sum sufficient to pay:
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(A)
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all overdue installments of
interest (including any Additional Interest) on all
Debentures,
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(B)
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the principal of the Debentures
which has become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in the Debentures,
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(C)
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to the extent that payment of such
interest is lawful, Additional Interest, and
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(D)
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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
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(2)
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all Events of Default with respect to the
Debentures, other than the non-payment of the principal of the
Debentures which has become due solely by such declaration of
acceleration, have been cured or waived as provided under Section
513 of the Indenture (as amended by Section 2.07(e) of this First
Supplemental Indenture). No such rescission shall affect any
subsequent Event of Default or impair any right consequent thereon.
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Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to
Debentures, all or part of which is represented by a Global Security, a
record date shall be established for determining Holders of Outstanding
Debentures entitled to join in such notice, which record date shall be at
the close of business on the day the Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such
Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite percentage having
joined in such notice prior to the day which is 90 days after such record
date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that
is identical to a written notice which has been canceled pursuant to the
proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of Section 502 of the Indenture, as
amended by Section 2.07 of this First Supplement Indenture.
(b) The Trustee shall provide to the Holders of the Debentures such notices as it shall
from time to time provide with respect to the Debentures under Section 602 of the Indenture.
In addition, the Trustee shall provide to the Holders of the Debentures notice of any Event
of Default or event that, with the giving of notice or lapse of time, or both,
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would become an Event of Default with respect to the Debentures, within 90 days after
the actual knowledge of a Responsible Officer of the Trustee of such Event of Default or
other event unless the default or Event of Default has been cured or waived. However,
except in cases of a default or an Event of Default in payment on the Debentures, the
Trustee will be protected in withholding the notice if one of its Responsible Officers
determines that withholding of the notice is in the interest of such Holders.
(c) Notwithstanding anything to the contrary in the Indenture or this First
Supplemental Indenture, the Trustee shall have no obligation to exercise any remedies with
respect to any such default unless and except to the extent directed in writing to do so by
the Holders of a majority in principal amount of the Outstanding Debentures in accordance
with and subject to the conditions set forth in Sections 512 and 603(e) of the Indenture.
The Trustee may conclusively assume that Sections 2.05 and 2.06 of this First Supplemental
Indenture have been complied with unless the Company or the Holders of 25% in aggregate
principal amount of the Debentures have given the Trustee written notice to the contrary.
(d) For the avoidance of doubt, and without prejudice to any other remedies that may be
available to the Trustee or the Holders of the Debentures under the Indenture, no breach by
the Company of any covenant or obligation under the Indenture or the terms of the Debentures
or the terms of this First Supplemental Indenture, including the Company’s obligations under
Section 2.02(a)(iv), Section 2.05 or Section 2.06 of this First Supplemental Indenture,
shall be an Event of Default with respect to the Debentures, other than those specified in
this Section 2.07; and except as provided herein and in the Indenture with respect the
occurrence and during the continuance of an Event of Default, and as provided in Section
2.07(c) above, the Trustee shall be under no duty or obligation to exercise any remedies or
otherwise take any action in respect of any other default that may occur under or in respect
of this First Supplemental Indenture or the Indenture.
(e) Solely for purposes of the Debentures, Section 513 of the Indenture shall be
deleted and replaced with the following:
Section 513 Waiver of Past Defaults.
Prior to the declaration of the acceleration of the maturity of the
Debentures, the Holders of not less than a majority in principal amount of
the Outstanding Debentures may on behalf of the Holders of all the
Debentures waive any past default with respect to the Debentures except a
default:
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(1)
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in the payment of the principal of or interest
(including any Additional Interest) on any Debenture, or
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(2)
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in respect of a covenant or provision hereof which
under Article Nine of the Indenture, as amended by Article Seven of
this First
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Supplemental Indenture, cannot be modified or amended without the
consent of the Holder of each Outstanding Debenture affected.
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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 Event of Default or impair any right consequent thereon.
Section 2.08.
Securities Registrar; Paying Agent; Delegation of Trustee Duties
.
(a) The Company appoints The Bank of New York Trust Company, N.A., as Securities
Registrar and Paying Agent with respect to the Debentures.
(b) Notwithstanding any provision contained herein, to the extent permitted by
applicable law, the Trustee may delegate its duty to provide such notices and to perform
such other duties as may be required to be provided or performed by the Trustee under the
Indenture, and, to the extent such obligation has been so delegated, the Trustee shall not
be responsible for monitoring the compliance of, nor be liable for the default or misconduct
of, any such designee.
Section 2.09.
Limitation on Claims in the Event of Bankruptcy, Insolvency or
Receivership
. Each Holder, by such Holder’s acceptance of the Debentures, agrees that in
certain events of the Company’s bankruptcy, insolvency or receivership prior to the redemption or
repayment of such Debentures, that Holder of Debentures shall have no claim for, and thus no right
to receive, any deferred and unpaid interest (including Additional Interest) pursuant to Section
2.05 that has not been paid pursuant to Sections 2.05 and 2.06 to the extent the amount of such
interest exceeds two years of accumulated and unpaid interest (including Additional Interest) on
such Holder’s Debentures.
Section 2.10.
Location of Payment
. Solely for the purposes of the Debentures, the
first paragraph of Section 307 of the Indenture shall be deleted and replaced by the following:
Section 3.07.
Payment Of Interest; Interest Rights Preserved.
Payment of the principal of (and premium, if any) and interest on the
Debentures will be made at the paying agent office, in such coin or currency
of the United States of America as at the time of payment is legal tender
for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in
the Securities Register or (ii) by wire transfer in immediately available
funds at such place and to such account as may be designated by the Person
entitled thereto as specified in the Securities Register in writing not less
than 10 days before the relevant Interest Payment Date. The office where
the Debentures may be presented or surrendered for payment
23
and the office where the Debentures may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in respect of
the Debentures and the Indenture may be served shall be the paying agent
office.
Section 2.11.
No Sinking Fund
. The Debentures shall not be subject to any sinking
fund or analogous provisions.
Section 2.12.
Subordination
. The subordination provisions of Article Thirteen of the
Indenture shall apply to the Debentures.
Section 2.13.
Satisfaction, Discharge and Defeasance
. The provisions of Section 403
of the Indenture shall apply to the Debentures.
ARTICLE 3
COVENANTS
Section 3.01.
Dividend and Other Payment Stoppages
. So long as any Debentures remain
Outstanding, if the Company has given notice of its election to defer interest payments on the
Debentures but the related Deferral Period has not yet commenced or a Deferral Period is
continuing, the Company shall not, and shall not permit any Subsidiary of the Company to:
(a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any shares of capital stock of the Company;
(b) make any payment of principal of, or interest or premium, if any, on or repay,
purchase or redeem any of the Company’s debt securities that rank upon the Company’s
liquidation, dissolution or winding up on a parity with or junior to the Debentures; or
(c) make any guarantee payments regarding any guarantee issued by the Company of
securities of any Subsidiaries if the guarantee ranks upon the Company’s liquidation,
dissolution or winding up on a parity with or junior to the Debentures;
provided, however, that the restrictions in clauses (a), (b) and (c) above do not apply to:
(i) any purchase, redemption or other acquisition of shares of its capital
stock by the Company in connection with (A) any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more of its
employees, officers, directors, consultants or independent contractors, (B) the
satisfaction of the Company’s obligations pursuant to any contract entered into in
the ordinary course of business prior to the beginning of the applicable Deferral
Period, (C) a dividend reinvestment or shareholder purchase plan, or (D) the
issuance of the Company’s capital stock, or securities convertible into or
24
exercisable for such capital stock, as consideration in an acquisition
transaction entered into prior to the applicable Deferral Period;
(ii) any exchange, redemption or conversion of any class or series of the
Company’s capital stock, or the capital stock of one of its Subsidiaries, for any
other class or series of its capital stock, or of any class or series of its
indebtedness for any class or series of its capital stock;
(iii) any purchase of fractional interests in shares of the Company’s capital
stock pursuant to the conversion or exchange provisions of such capital stock or the
securities being converted or exchanged;
(iv) any declaration of a dividend in connection with any shareholder rights
plan, or the issuance of rights, stock or other property under any shareholder
rights plan, or the redemption or purchase of rights pursuant thereto;
(v) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or ranks
equally with or junior to such stock;
(vi) any payment of current or deferred interest on Pari Passu Securities that
is made pro rata to the amounts due on such Pari Passu Securities (including the
Debentures); provided that such payments are made in accordance with Section 2.06(c)
to the extent it applies, and any payments of deferred interest on Pari Passu
Securities that, if not made, would cause the Company to breach the terms of the
instrument governing such Pari Passu Securities; or
(vii) any payment of principal in respect of Pari Passu Securities having the
same scheduled maturity date as the Debentures, as required under a provision of
such other Pari Passu Securities that is substantially the same as the provisions in
Section 2.02, and that is made on a pro rata basis among one or more series of Pari
Passu Securities (including the Debentures) having such a provision and the
Debentures; or
(viii) any repayment or redemption of a security necessary to avoid a breach of
the instrument governing the same.
Section 3.02.
Additional Limitation on Deferral Over One Year
. If any Deferral Period
lasts longer than one year, the limitation on the Company’s ability to redeem or purchase APM
Qualifying Securities or any securities of the Company that on the Company’s bankruptcy or
liquidation rank pari passu, or junior, as applicable, to such APM Qualifying Securities as set
forth in Section 3.01, shall continue until the first anniversary of the date on which all deferred
interest on the Debentures has been paid, subject to the exceptions listed in Section 3.01 above.
However, if the Company is involved in a Business Combination where immediately after its
consummation more than 50% of the voting stock of the Person that is the surviving or resulting
entity of such Business Combination, or the Person to whom all or substantially all of the
Company’s property or assets are conveyed, transferred or leased in such
25
Business Combination, is owned by the shareholders of the other party to such Business
Combination or Person to whom all or substantially all of the Company’s property or assets are
conveyed, transferred or leased, or Continuing Directors cease for any reason to constitute a
majority of the directors of the surviving or resulting entity or Person to whom all or
substantially all of the Company’s property or assets are conveyed, transferred or leased, then the
immediately preceding sentence will not apply during the Deferral Period that is terminated on the
next Interest Payment Date following the date of consummation of such Business Combination.
ARTICLE 4
REDEMPTION OF THE DEBENTURES
Section 4.01.
Redemption
. The Debentures shall be redeemable in accordance with
Article Eleven of the Indenture, except to the extent otherwise provided in this First Supplemental
Indenture:
(a) in whole or in part, at the Company’s option at any time after the date of this
First Supplemental Indenture;
(b) in whole but not in part, within 90 days after the occurrence of a Tax Event or a
Rating Agency Event;
provided that no partial redemption pursuant to Section 4.01(a) shall be effected (x) unless at
least $25 million aggregate principal amount of the Debentures, excluding any Debentures held by
the Company or any of its affiliates, remains Outstanding after giving effect to such redemption
and (y) if the principal amount has been accelerated and such acceleration has not been rescinded
or unless all accrued and unpaid interest, including deferred interest, has been paid in full on
all Outstanding Debentures for all interest periods terminating on or before the redemption date.
Section 4.02.
Redemption Price
. The Redemption Price for any redemption pursuant to
Section 4.01(a) or (b) will be equal to (1) in the case of any redemption on or after April 15,
2017, 100% of the principal amount of the Debentures being redeemed plus accrued and unpaid
interest to the redemption date or (2) in the case of any redemption prior to April 15, 2017, the
greater of (i) 100% of the principal amount of the Debentures being redeemed, plus accrued and
unpaid interest to the redemption date and (ii) the Make-Whole Redemption Price.
Section 4.03.
Transfers and Exchanges
. In the event of any redemption, neither the
Company nor the Trustee will be required to
(a) issue, register the transfer of, or exchange, Debentures during a period beginning
at the opening of business 15 days before the day of selection for redemption of Debentures
and ending at the close of business on the day of mailing of notice of redemption; or
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(b) transfer or exchange any Debentures so selected for redemption, except, in the case
of any Debentures being redeemed in part, any portion thereof not to be redeemed.
ARTICLE 5
REPAYMENT OF DEBENTURES
Section 5.01.
Repayments
. The Company shall, not more than 45 nor less than 30
Business Days prior to each Repayment Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of the principal amount of Debentures to be repaid on such date
pursuant to Section 2.02(a).
Section 5.02.
Selection of the Debentures to be Repaid
. If less than all the
Debentures are to be repaid on any Repayment Date (unless the Debentures are issued in the form of
a Global Security), the particular Debentures to be repaid shall be selected not more than 30 days
prior to such Repayment Date by the Trustee, from the Outstanding Debentures not previously repaid
or called for redemption, by lot or such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion of the principal
amount of any Debentures, provided that the portion of the principal amount of any Debentures not
repaid shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination).
The Trustee shall promptly notify the Company in writing of the Debentures selected for
partial repayment and the principal amount thereof to be repaid. For all purposes hereof, unless
the context otherwise requires, all provisions relating to the repayment of Debentures shall
relate, in the case of any Debentures repaid or to be repaid only in part, to the portion of the
principal amount of such Debentures which has been or is to be repaid.
Section 5.03.
Notice of Repayment
. Notice of repayment shall be given by first-class
mail, postage prepaid, mailed not earlier than the 15th day, and not later than the 10th Business
Day, prior to the Repayment Date, to each Holder of Debentures to be repaid, at the address of such
Holder as it appears in the Security Register.
Each notice of repayment shall identify the Debentures to be repaid (including the Debentures’
CUSIP number, if a CUSIP number has been assigned to the Debentures) and shall state:
(a) the Repayment Date;
(b) if less than all Outstanding Debentures are to be repaid, the identification (and,
in the case of partial repayment, the respective principal amounts) of the particular
Debentures to be repaid;
(c) that on the Repayment Date, the principal amount of the Debentures to be repaid
will become due and payable upon each such Debentures or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date; and
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(d) the place or places where such Debentures are to be surrendered for payment of the
principal amount thereof.
Notice of repayment shall be given by the Company or, if the Company timely notifies the
Trustee, at the Company’s request, by the Trustee in the name and at the expense of the Company and
shall be irrevocable. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holders receive such notice. In any case, a
failure to give such notice by mail or any defect in the notice to any Holder of any Debentures
designated for repayment as a whole or in part shall not affect the validity of the proceedings for
the repayment of any other Debentures.
Section 5.04.
Deposit of Repayment Amount
. On or prior to 11:00 a.m. New York City
time on the Repayment Date specified in the notice of repayment given as provided in Section 5.03,
the Company will deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as provided in Section
1003 of the Indenture) an amount of money, in immediately available funds, sufficient to pay the
principal amount of, and any accrued interest on, all the Debentures which are to be repaid on that
date.
Section 5.05.
Repayment of Debentures
. If any notice of repayment has been given as
provided in Section 5.03, the Debentures or portion of the Debentures with respect to which such
notice has been given shall become due and payable on the date and at the place or places stated in
such notice. On presentation and surrender of such Debentures at a Place of Payment in said notice
specified, the said securities or the specified portions thereof shall be paid by the Company at
their principal amount, together with accrued interest to but excluding the Repayment Date;
provided that, except in the case of a repayment in full of all Outstanding Debentures,
installments of interest whose Stated Maturity is on or prior to the Repayment Date will be payable
to the Holders of such Debentures, registered as such at the close of business on the relevant
Regular Record Dates according to their terms and the provisions of Section 1001 of the Indenture.
Upon presentation of any Debentures repaid in part only, the Company shall execute and the Trustee
shall authenticate and make available for delivery to the Holders thereof, at the expense of the
Company, a new Debenture, of authorized denominations, in aggregate principal amount equal to the
portion of the Debentures not repaid and so presented and having the same Scheduled Maturity Date
and other terms. If a Global Security is so surrendered, such new Debentures will also be a new
Global Security.
If any Debentures required to be repaid shall not be so repaid upon surrender thereof, the
principal of such Debentures shall, until paid, bear interest from the applicable Repayment Date at
the rate prescribed therefore in the Debentures.
ARTICLE 6
ORIGINAL ISSUE OF DEBENTURES
Section 6.01.
Calculation of Original Issue Discount
. If during any calendar year any
original issue discount shall have accrued on the Debentures, the Company shall file with each
Paying Agent (including the Trustee if it is a Paying Agent) upon reasonable
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request (a) a written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Debentures as of the end of such year and (b)
such other specific information relating to such original issue discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01.
Supplemental Indentures Without Consent Of Holders
. Solely for purposes
of the Debentures, Section 901 of the Indenture shall be deleted and replaced with the following:
Section 901.
Supplemental Indentures Without Consent Of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may
supplement or amend the Indenture and this First Supplemental Indenture for
any of the following purposes:
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(1)
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to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Debentures; or
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(2)
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to add to or modify the covenants of the
Company for the benefit of the Holders of Debentures or to
surrender any right or power herein conferred upon the Company;
provided that no such amendment, modification or surrender may add
Events of Default or acceleration events with respect to the
Debentures; or
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(3)
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to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Debentures 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 611(b) of the Indenture; or
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(4)
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to qualify or maintain qualification of this
Indenture under the Trust Indenture Act; or
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(5)
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to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with
any other provision herein or in any supplemental indenture, or to
make any other provisions with respect to matters or questions
arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Debentures in any
material respect; or
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(6)
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to make any changes to the Indenture or this
First Supplemental indenture in order to conform the Indenture and
this First Supplemental Indenture to the final prospectus
supplement, dated March 26, 2007, provided to investors in
connection with the offer and sale of the Debentures.
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Section 7.02.
Supplemental Indentures With Consent of Holders
.
Solely for purposes of the Debentures, clauses (1) through (4) of Section 902 of the Indenture
shall be deleted and replaced with the following:
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(1)
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change the Stated Maturity of the principal of,
or any installment of interest (including any Additional Interest)
on, any Debenture, including the Scheduled Maturity Date and the
Final Maturity Date,
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(2)
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reduce the principal amount thereof or the rate
of interest thereon or reduce any premium payable upon the
redemption thereof, or otherwise change the manner of calculating
payments due on the Debentures in a manner adverse to Holders of
the Debentures,
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(3)
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change in an adverse manner the place of
payment where, or change the coin or currency in which, any
Debenture or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment, or
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(4)
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reduce the percentage in principal amount of
the Outstanding Debentures, 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 the Indenture or this First Supplemental Indenture or
certain defaults hereunder and their consequences or otherwise
reduce the requirements contained in the Indenture or this First
Supplemental Indenture for quorum or voting in respect of the
Debentures, or
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(5)
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modify any of the provisions of this Section or
Section 513 of the Indenture (as amended by Section 2.07(e) of this
First Supplemental Indenture), except to increase any such
percentage or to provide that certain other provisions of the
Indenture or this First Supplemental Indenture cannot be modified
or waived without the consent of the Holder of each Debenture
affected thereby.
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ARTICLE 8
MISCELLANEOUS
Section 8.01.
Effectiveness
. This First Supplemental Indenture will become effective
upon its execution and delivery.
Section 8.02.
Effect of Recitals
. The recitals contained herein and in the
Debentures, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the validity or sufficiency of this
First Supplemental Indenture or of the Debentures. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the Debentures or the
proceeds thereof.
Section 8.03.
Ratification of Indenture
. The Indenture as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein
provided.
Section 8.04.
Tax Treatment
. The Company agrees, and by acceptance of a Debenture or
a beneficial interest in a Debenture each Holder of a Debenture and any person acquiring a
beneficial interest in a Debenture agrees, to treat the Debentures as indebtedness for United
States federal income tax purposes.
Section 8.05.
Governing Law.
This First Supplemental Indenture, the Indenture as
supplemented hereby and the Debentures shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of laws principles thereof.
Section 8.06.
Severability
. In case any provision in this First Supplemental
Indenture, the Indenture as supplemented hereby or in the Debentures 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.
* * *
This instrument may be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute but one and the same
instrument.
31
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly
executed as of the day and year first above written.
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THE CHUBB CORPORATION
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By:
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/s/
Michael O'Reilly
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Name:
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Michael O'Reilly
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Title:
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Vice Chairman and Chief Financial Officer
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[CORPORATE SEAL]
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Attest:
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/s/
W. Andrew Macan
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Name:
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W. Andrew Macan
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Title:
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Vice President and Secretary
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THE BANK OF NEW YORK TRUST
COMPANY, N.A. as Trustee
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By:
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/s/
Benita A. Vaughn
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Name:
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Benita A. Vaughn
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Title:
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Vice President
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Exhibit 99.1
Replacement Capital Covenant
, dated as of March 29, 2007 (this “
Replacement
Capital Covenant
”), by The Chubb Corporation, a New Jersey corporation (together with its
successors and assigns, including any entity surviving or resulting from a merger, consolidation,
binding share exchange, sale, lease or transfer of all or substantially all of the assets or other
business combination, the “
Corporation
”), in favor of and for the benefit of each Covered
Debtholder (as defined below).
Recitals
A.
On the date hereof, the Corporation is issuing $1,000,000,000 aggregate principal amount of
its 6.375% Directly-Issued Subordinated Capital Securities (DISCS
sm
) due 2067 (the “
Debentures
”).
B.
This Replacement Capital Covenant is the “Replacement Capital Covenant” referred to in the
Prospectus Supplement, dated March 26, 2007 (the “
Prospectus Supplement
”), relating to the
Debentures.
C.
The Corporation is entering into and disclosing the content of this Replacement Capital
Covenant in the manner provided below with the intent that the covenants provided for in this
Replacement Capital Covenant be enforceable by each Covered Debtholder and that the Corporation be
estopped from disregarding the covenants in this Replacement Capital Covenant, in each case to the
fullest extent permitted by applicable law.
D.
The Corporation acknowledges that reliance by each Covered Debtholder upon the covenants in
this Replacement Capital Covenant is reasonable and foreseeable by the Corporation and that, were
the Corporation to disregard its covenants in this Replacement Capital Covenant, each Covered
Debtholder would have sustained an injury as a result of its reliance on such covenants.
Now, Therefore
, the Corporation hereby covenants and agrees as follows in favor of
and for the benefit of each Covered Debtholder.
SECTION 1.
Definitions
. Capitalized terms used in this Replacement Capital Covenant
(including the Recitals) have the meanings set forth in Schedule I hereto.
SECTION 2.
Limitations on Redemption and Purchase of Debentures
. The Corporation hereby
promises and covenants to and for the benefit of each Covered Debtholder that the Corporation shall
not repay, redeem, defease or purchase, and no Subsidiary of the Corporation shall purchase, all or
any part of the Debentures prior to March 29, 2047, except to the extent that the principal amount
repaid or defeased or the applicable redemption or purchase price does not exceed the sum of the
following amounts:
(i) the Applicable Percentage of the aggregate amount of (a) the net cash proceeds the
Corporation and its Subsidiaries have received from the sale of Common Stock and rights to
acquire Common Stock to Persons other than the Corporation and its Subsidiaries, (b) the
Market Value of any Common Stock (or rights to acquire Common Stock) the Corporation and its
Subsidiaries have delivered as consideration for property or assets in an arms length
transaction
1
and (c) the Market Value of any Common Stock that the Corporation and its Subsidiaries
have issued to persons other than the Corporation and its Subsidiaries in connection with
the conversion of any convertible or exchangeable securities, other than securities for
which the Corporation or any of its Subsidiaries have received equity credit from any NRSRO,
in each case within a Measurement Period (without double counting proceeds received in any
prior Measurement Period);
plus
(ii) the aggregate amount of net cash proceeds the Corporation and its Subsidiaries
have received within a Measurement Period (without double counting proceeds received in any
prior Measurement Period) from the sale of Mandatorily Convertible Preferred Stock, Debt
Exchangeable for Common Equity, Debt Exchangeable for Preferred Equity and Qualifying
Capital Securities to Persons other than the Corporation and its Subsidiaries
provided
that the limitations in this Section 2 shall not restrict the repayment, redemption or
other purchase of any Debentures that the Corporation has previously defeased in accordance with
this Replacement Capital Covenant.
SECTION 3.
Covered Debt
. (a) The Corporation represents and warrants that the Initial
Covered Debt is Eligible Senior Debt.
(b) On or during the 30-day period immediately preceding any Redesignation Date with respect
to the Covered Debt then in effect, the Corporation shall identify the series of Eligible Debt that
will become the Covered Debt on and after such Redesignation Date in accordance with the following
procedures:
(i) the Corporation shall identify each series of its then outstanding unsecured,
long-term indebtedness for money borrowed that is Eligible Debt;
(ii) if only one series of the Corporation’s then outstanding unsecured, long-term
indebtedness for money borrowed is Eligible Debt, such series shall become the Covered Debt
commencing on the related Redesignation Date;
(iii) if the Corporation has more than one outstanding series of unsecured, long-term
indebtedness for money borrowed that is Eligible Debt, then the Corporation shall identify
the series that has the latest stated final maturity date as of the date the Corporation is
applying the procedures in this Section 3(b) and such series shall become the Covered Debt
on the related Redesignation Date;
(iv) the series of outstanding long-term indebtedness for money borrowed that is
determined to be Covered Debt pursuant to clause (ii) or (iii) above shall be the Covered
Debt for purposes of this Replacement Capital Covenant for the period commencing on the
related Redesignation Date and continuing to but not including the Redesignation Date as of
which a new series of outstanding unsecured, long-term indebtedness is next determined to be
the Covered Debt pursuant to the procedures set forth in this Section 3(b); and
2
(v) in connection with such identification of a new series of Covered Debt, the
Corporation shall, as provided for in Section 3(c), give a notice and file with the
Commission a Current Report on Form 8-K (or any successor form) under the Securities
Exchange Act including or incorporating by reference this Replacement Capital Covenant as an
exhibit within the time frame provided for in such section.
(c)
Notice
. In order to give effect to the intent of the Corporation described in Recital C,
the Corporation covenants that (i) simultaneously with the execution of this Replacement Capital
Covenant or as soon as practicable after the date hereof, it shall (x) give notice to the Holders
of the Initial Covered Debt, in the manner provided in the indenture relating to the Initial
Covered Debt, of this Replacement Capital Covenant and the rights granted to such Holders hereunder
and (y) file a copy of this Replacement Capital Covenant with the Commission as an exhibit to a
Current Report on Form 8-K (or any successor form) under the Securities Exchange Act; (ii) so long
as the Corporation is a reporting company under the Securities Exchange Act, the Corporation will
include in each Annual Report on Form 10-K (or any successor form) filed with the Commission under
the Securities Exchange Act a description of the covenant set forth in Section 2 and identify the
series of long-term indebtedness for borrowed money that is Covered Debt as of the date such Form
10-K (or any successor form) is filed with the Commission; (iii) if a series of the Corporation’s
long-term indebtedness for money borrowed (1) becomes Covered Debt or (2) ceases to be Covered
Debt, the Corporation will give notice of such occurrence within 30 days to the holders of such
long-term indebtedness for money borrowed in the manner provided for in the indenture, fiscal
agency agreement or other instrument under which such long-term indebtedness for money borrowed was
issued and report such change in a Current Report on Form 8-K (or any successor form), which must
include or incorporate by reference this Replacement Capital Covenant, and in the Corporation’s
next Quarterly Report on Form 10-Q (or any successor form) or Annual Report on Form 10-K (or any
successor form), as applicable; (iv) upon succession of any new entity as the Corporation hereunder
as a result of a merger, consolidation, binding share exchange, sale, lease or transfer of all or
substantially all of the assets or other business combination of the Corporation as it existed
prior thereto, the Corporation will give notice of such occurrence within 30 days to the holders of
each series of Covered Debt in the manner provided for in the indenture, fiscal agency agreement or
other instrument under which such series of Covered Debt was issued and report such change in a
Current Report on Form 8-K (or any successor form), which must include or incorporate by reference
this Replacement Capital Covenant, and in the Corporation’s next Quarterly Report on Form 10-Q (or
any successor form) or Annual Report on Form 10-K (or any successor form), as applicable; (v) if,
and only if, the Corporation ceases to be a reporting company under the Securities Exchange Act,
the Corporation will (A) post on its website (or any other similar electronic platform generally
available to the public) the information otherwise required to be included in Securities Exchange
Act filings pursuant to clauses (ii) and (iii) of this Section 3(c) and (B) cause a notice of the
execution of this Replacement Capital Covenant to be posted on the Bloomberg screen for the Initial
Covered Debt or any successor Bloomberg screen and each similar third-party vendor’s screen the
Corporation reasonably believes is appropriate (each an “Investor Screen”) and cause a hyperlink to
the execution copy of this Replacement Capital Covenant to be included on the Investor Screen for
each series of Covered Debt, in each case to the extent permitted by Bloomberg or such similar
third-party vendor, as the case may be; and (vi) promptly upon request by any Holder of Covered
Debt, the Corp
oration will provide such Holder with a copy of this executed Replacement Capital
Covenant.
3
SECTION 4.
Termination, Amendment and Waiver
. (a) The obligations of the Corporation
pursuant to this Replacement Capital Covenant shall remain in full force and effect until the
earliest date (the “
Termination Date
”) to occur of (i) March 29, 2047, or, if earlier, the date on
which the Debentures are otherwise repaid, redeemed, defeased, satisfied and discharged or
purchased in full (in compliance with the terms of this Replacement Capital Covenant), (ii) the
date, if any, on which the Holders of at least a majority of the then outstanding principal amount
of the then-effective series of Covered Debt consent or agree in writing to the termination of this
Replacement Capital Covenant and the obligations of the Corporation hereunder and (iii) the date on
which the Corporation ceases to have any series of outstanding Eligible Senior Debt or Eligible
Subordinated Debt (in each case without giving effect to the rating requirement in clause (b) of
the definition of each such term). Moreover, if an event of default under the Supplemental
Indenture resulting in an acceleration of the Debentures occurs, this Replacement Capital Covenant
shall, without any further action, immediately terminate upon such acceleration. From and after
the Termination Date, the obligations of the Corporation pursuant to this Replacement Capital
Covenant shall be of no further force and effect.
(b) This Replacement Capital Covenant may be amended or supplemented from time to time by a
written instrument signed by the Corporation with the consent of the Holders of at least a majority
of the then outstanding principal amount of the then-effective series of Covered Debt,
provided
that this Replacement Capital Covenant may be amended or supplemented from time to time by a
written instrument signed only by the Corporation (and without the consent of the Holders of the
then-effective series of Covered Debt) if any of the following apply (it being understood that any
such amendment or supplement may fall into one or more of the following): (i) the effect of such
amendment or supplement is solely to impose additional restrictions on, or to eliminate certain of,
the types of securities qualifying as Replacement Capital Securities and an officer of the
Corporation has delivered to the Holders of the then-effective series of Covered Debt in the manner
provided for in the indenture, fiscal agency agreement or other instrument with respect to such
Covered Debt a written certificate to that effect, (ii) such amendment or supplement is not adverse
to the rights of the Covered Debtholders hereunder and an officer of the Corporation has delivered
to the Holders of the then-effective series of Covered Debt in the manner provided for in the
indenture, fiscal agency agreement or other instrument with respect to such Covered Debt a written
certificate stating that, in his or her determination, such amendment or supplement is not adverse
to the Covered Debtholders, or (iii) such amendment or supplement eliminates Common Stock and/or
Mandatorily Convertible Preferred Stock as Replacement Capital Securities if, in the case of this
clause (iii), an accounting standard or interpretive guidance of an existing accounting standard
issued by an organization or regulator that has responsibility for establishing or interpreting
accounting standards in the United States becomes effective, which, as a result, causes the
Corporation to believe that there is more than an insubstantial risk that the failure to do so
would result in a reduction in the Corporation’s earnings per share as calculated for financial
reporting purposes.
(c) For purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement is required
to terminate, amend or supplement the obligations of the Corporation under this Replacement Capital
Covenant shall be the Holders of the then-effective Covered Debt as of a record date established by
the Corporation that is not more than 30 days prior to the date on which the Corporation proposes
that such termination, amendment or supplement becomes effective.
4
SECTION 5.
Miscellaneous
. (a) This Replacement Capital Covenant shall be governed by and
construed in accordance with the laws of the State of New York.
(b) This Replacement Capital Covenant shall be binding upon the Corporation and its successors
and assigns and shall inure to the benefit of the Covered Debtholders as they exist from
time-to-time (it being understood and agreed by the Corporation that any Person who is a Covered
Debtholder at the time such Person acquires, holds or sells Covered Debt shall retain its status as
a Covered Debtholder for so long as the series of long-term indebtedness for borrowed money owned
by such Person is Covered Debt and, if such Person initiates a claim or proceeding to enforce its
rights under this Replacement Capital Covenant after the Corporation has violated its covenants in
Section 2 and before the series of long-term indebtedness for money borrowed held by such Person is
no longer Covered Debt, such Person’s rights under this Replacement Capital Covenant shall not
terminate by reason of such series of long-term indebtedness for money borrowed no longer being
Covered Debt). Other than the Covered Debtholders as provided in the previous sentence, no other
Person shall have any rights under this Replacement Capital Covenant or be deemed a third party
beneficiary of this Replacement Capital Covenant. In particular, no holder of the Debentures is a
third party beneficiary of this Replacement Capital Covenant, it being understood that such holders
may have rights under the Subordinated Indenture.
(c) All demands, notices, requests and other communications to the Corporation under this
Replacement Capital Covenant shall be deemed to have been duly given and made if in writing and (i)
if served by personal delivery upon the Corporation, on the day so delivered (or, if such day is
not a Business Day, the next succeeding Business Day) or (ii) if delivered by registered post or
certified mail, return receipt requested, or sent to the Corporation by a national or international
courier service, on the date of receipt by the Corporation (or, if such date of receipt is not a
Business Day, the next succeeding Business Day), and in each case to the Corporation at the address
set forth below, or at such other address as the Corporation may thereafter notify to Covered
Debtholders or post on its website (or any other similar electronic platform generally available to
the public) as the address for notices under this Replacement Capital Covenant:
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The Chubb Corporation
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15 Mountain View Road, P.O. Box 1615
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Warren, New Jersey 07061
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Attention: Chief Financial Officer
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In Witness Whereof
, the Corporation has caused this Replacement Capital Covenant to
be executed by its duly authorized officer, as of the day and year first above written.
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THE CHUBB CORPORATION
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By:
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/s/ Michael O’Reilly
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Name:
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Michael O’Reilly
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Title:
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Vice Chairman and Chief Financial Officer
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1
Annex I
DEFINITIONS
“
Alternative Payment Mechanism
” means, with respect to any securities or combination of
securities (together in this definition, “
securities
”), provisions in the related transaction
documents that require the Corporation to issue (or use commercially reasonable efforts to issue)
one or more types of APM Qualifying Securities raising eligible proceeds at least equal to the
deferred Distributions on such securities and apply the proceeds to pay deferred Distributions on
such securities, commencing on the earlier of (x) the first Distribution Date after commencement of
a deferral period on which the Corporation pays current Distributions on such securities and (y)
the fifth anniversary of the commencement of such deferral period if on such date such deferral
period has not ended, and that
(a) define “eligible proceeds” to mean, for purposes of such Alternative Payment
Mechanism, the net proceeds (after underwriters’ or placement agents’ fees, commissions or
discounts and other expenses relating to the issuance or sale of the relevant securities,
where applicable) that the Corporation has received during the 180 days prior to the related
Distribution Date from the issuance of APM Qualifying Securities to persons that are not
Subsidiaries of the Corporation up to the Preferred Cap in the case of APM Qualifying
Securities that are Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock;
(b) permit the Corporation to pay current Distributions on any Distribution Date out of
any source of funds but (x) require the Corporation to pay deferred Distributions only out
of eligible proceeds and (y) prohibit the Corporation from paying deferred Distributions out
of any source of funds other than eligible proceeds, unless an event of default has occurred
and is continuing;
(c) if deferral of Distributions continues for more than one year, require the
Corporation not to redeem or purchase any of its securities ranking junior to or
pari passu
with any APM Qualifying Securities the proceeds of which were used to settle deferred
interest during the relevant deferral period until at least one year after all deferred
Distributions have been paid, except in circumstances substantially similar to those listed
in “Description of the Debentures – Dividend and Other Payment Stoppages during Interest
Deferral and under Certain Other Circumstances” in the Prospectus Supplement (a “
Repurchase
Restriction
”);
(d) limit the obligation of the Corporation to issue (or use commercially reasonable
efforts to issue) APM Qualifying Securities up to:
(i) in the case of APM Qualifying Securities that are Common Stock or rights to
purchase Common Stock, during the first five years of any deferral period a number
of shares of Common Stock or rights to purchase a number of shares of Common Stock
not in excess of 2% of the number of shares of outstanding Common Stock set forth in
the Corporation’s most recently published financial statements (the “
Common Cap
”);
and
(ii) in the case of APM Qualifying Securities that are Qualifying Preferred
Stock or Mandatorily Convertible Preferred Stock, an amount from the issuance of
such Qualifying Preferred Stock and then still-outstanding Mandatorily Convertible
Preferred Stock pursuant to the related Alternative Payment Mechanism (including, in
the case of Qualifying Preferred Stock, at any point in time from all prior
issuances thereof pursuant to such Alternative Payment Mechanism) equal to 25% of
the liquidation or principal
1
amount of the securities that are the subject of the related Alternative
Payment Mechanism (the “
Preferred Cap
”);
(e) permit the Corporation, at its option, to impose a limitation on the issuance of
APM Qualifying Securities consisting of Common Stock and rights to purchase Common Stock, in
each case to a maximum issuance cap to be set at the Corporation’s discretion and otherwise
substantially similar to the “share cap” as defined in the Prospectus Supplement,
provided
that such share cap will be subject to the Corporation’s agreement to use commercially
reasonable efforts (i) to increase the share cap when reached to enable it to simultaneously
satisfy its future fixed or contingent obligations under such securities and other
securities and derivative instruments that provide for settlement or payment in shares of
Common Stock or (ii) if the Corporation cannot increase the share cap as contemplated in the
preceding clause, by requesting its board of directors to adopt a resolution for shareholder
vote at the next annual meeting of shareholders of the Corporation to
increase the number of shares of the Corporation’s authorized common stock for purposes of satisfying the
Corporation’s obligations to pay deferred distributions;
(f) in the case of securities other than Qualifying Preferred Stock, include a
Bankruptcy Claim Limitation Provision; and
(g) permit the Corporation, at its option, to provide that if the Corporation is
involved in a merger, consolidation, amalgamation, binding share exchange or conveyance,
transfer or lease of assets substantially as an entirety to any other person or a similar
transaction (a “
business combination
”) where immediately after the consummation of the
business combination more than 50% of the voting stock of the surviving or resulting entity
or the person to whom all or substantially all of the Corporation’s property or assets are
conveyed, transferred or leased in such business combination is owned by the shareholders of
the other party to the business combination or person to whom all or substantially all of
the Corporation’s property or assets are conveyed, transferred or leased, or Continuing
Directors cease for any reason to constitute a majority of the directors of the surviving or
resulting entity or person to whom all or substantially all of the Corporation’s property or
assets are conveyed, transferred or leased, then clauses (a), (b) and (c) above will not
apply to any deferral period that is terminated on the next interest payment date following
the date of consummation of the business combination;
provided
(and it being understood) that:
(1) the Corporation shall not be obligated to issue (or use commercially reasonable
efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has
occurred and is continuing;
(2) if, due to a Market Disruption Event or otherwise, the Corporation is able to raise
and apply some, but not all, of the eligible proceeds necessary to pay all deferred
Distributions on any Distribution Date, the Corporation will apply any available eligible
proceeds to pay accrued and deferred Distributions on the applicable Distribution Date in
chronological order subject to the Common Cap, the Preferred Cap, and any share cap referred
to above, as applicable; and
(3) if the Corporation has outstanding more than one class or series of securities
under which it is obligated to sell a type of APM Qualifying Securities and apply some part
of the proceeds to the payment of deferred Distributions, then on any date and for any
period the
2
amount of net proceeds received by the Corporation from those sales and available for
payment of deferred Distributions on such securities shall be applied to such securities on
a pro rata basis up to the Common Cap, the Preferred Cap and any share cap referred to
above, as applicable, in proportion to the total amounts that are due on such securities.
“
APM Qualifying Securities
” means, with respect to an Alternative Payment Mechanism, one or
more of the following (as designated in the transaction documents for the Qualifying Capital
Securities that include an Alternative Payment Mechanism):
(i) Common Stock;
(ii) rights to purchase Common Stock;
(iii) Qualifying Preferred Stock; and
(iv) Mandatorily Convertible Preferred Stock.
“
Applicable Percentage
” means 1 divided by i) 75% with respect to any repayment, redemption,
defeasance or purchase prior to April 15, 2017, ii) 50% with respect to any repayment, redemption
defeasance or purchase on or after April 15, 2017 and prior to April 15, 2037 and iii) 25% with
respect to any repayment, redemption, defeasance or purchase on or after April 15, 2037.
“Bankruptcy Claim Limitation Provision
” means, with respect to any securities or combination
of securities that have an Alternative Payment Mechanism or a Mandatory Trigger Provision (together
in this definition, “
securities
”), provisions in the terms thereof or of the related transaction
agreements that, upon any liquidation, dissolution, winding up or reorganization or in connection
with any insolvency, receivership or proceeding under any bankruptcy law with respect to the
issuer, limit the claim of the holders of such securities to Distributions that accumulate during
(A) any deferral period, in the case of securities that have an Alternative Payment Mechanism or
(B) any period in which the Corporation fails to satisfy one or more financial tests set forth in
the terms of such securities or related transaction agreements, in the case of securities having a
Mandatory Trigger Provision, to:
(i) in the case of securities having an Alternative Payment Mechanism or Mandatory
Trigger Provision with respect to which the APM Qualifying Securities do not include
Qualifying Preferred Stock or Mandatorily Convertible Preferred Stock, 25% of the stated or
principal amount of such securities then outstanding; and
(ii) in the case of any other securities, the amount of accumulated and deferred
Distributions (including compounded amounts) that relate to the earliest two years of the
portion of the deferral period for which Distributions have not been paid; provided,
however, that holders of such securities may have an additional claim that is senior to the
Corporation’s Common Stock and is or would be pari passu with any Qualifying Preferred Stock
in respect of deferred Distributions which are in excess of Distributions that relate to the
earliest two years of the portion of the deferral period for which Distributions have not
been paid on such securities, up to the amount equal to their pro rata shares of any unused
portion of the Preferred Cap.
“
Business Day
” means each day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in New York, New York are authorized or required by law or executive order to
remain closed or (c) on or after April 15, 2017, a day that is not a London business day. A
“
London business day
” is any day on which dealings in U.S. dollars are transacted in the London
interbank market.
3
“
Commission
” means the United States Securities and Exchange Commission or any successor
agency.
“
Common Cap
” has the meaning specified in the definition of Alternative Payment Mechanism.
“
Common Stock
” means the common stock of the Corporation (including treasury shares of common
stock), common stock issued pursuant to any dividend reinvestment plan or employee benefit plans, a
security of the Corporation ranking upon liquidation, dissolution or winding up junior to the
Qualifying Preferred Stock and pari passu with the Corporation’s common stock, that tracks the
performance of, or relates to the results of, a business, unit or division of the Corporation, and
any securities issued in exchange therefor in connection with a merger, consolidation, binding
share exchange, business combination, recapitalization or other similar event.
“Continuing Directors”
means a director who was a director of the Corporation at the time the
definitive agreement relating to the business combination described in paragraph (g) of the
definition of Alternative Payment Mechanism above was approved by the Corporation’s Board of
Directors.
“
Corporation
” has the meaning specified in the introduction to this instrument.
“
Covered Debt
” means (a) at the date of this Replacement Capital Covenant and continuing to
but not including the first Redesignation Date, the Initial Covered Debt and (b) thereafter,
commencing with each Redesignation Date and continuing to but not including the next succeeding
Redesignation Date, the Eligible Debt identified pursuant to Section 3(b) as the Covered Debt for
such period.
“
Covered Debtholder
” means each Person (whether a Holder or a beneficial owner holding through
a participant in a clearing agency) that buys, holds or sells long-term indebtedness for money
borrowed of the Corporation during the period that such long-term indebtedness for money borrowed
is Covered Debt,
provided
that, except as provided in Section 5(b), a Person who has sold all of
its right, title and interest in Covered Debt shall cease to be a Covered Debtholder at the time of
such sale if, at such time, the Corporation has not breached or repudiated, or threatened to breach
or repudiate, its obligations hereunder.
“
Debentures
” has the meaning specified in Recital A.
“
Debt Exchangeable for Common Equity
” means a security or combination of securities (together
in this definition, “such securities”) that:
(i) gives the holder a beneficial interest in (i) debt securities of the Corporation
that are not redeemable prior to settlement of the stock purchase contract referred to in
subclause (ii) hereof and (ii) a fractional interest in a stock purchase contract for a
share of common stock of the Corporation that will be settled in three years or less, with
the number of shares of common stock purchasable pursuant to such stock purchase contract
to be within a range established at the time of issuance of such debt securities;
(ii) provides that the investors directly or indirectly grant to the Corporation a
security interest in such debt securities and their proceeds (including any substitute
collateral
4
permitted under the transaction documents) to secure the investors’ direct or indirect
obligation to purchase common stock of the Corporation pursuant to such stock purchase
contracts;
(iii) includes a remarketing feature pursuant to which the debt securities of the
Corporation are remarketed to new investors commencing not later than the settlement date
of the purchase contract; and
(iv) provides for the proceeds raised in the remarketing to be used to purchase common
stock of the Corporation under the stock purchase contracts and, if there has not been a
successful remarketing by the settlement date of the purchase contract, provides that the
stock purchase contracts will be settled by the Corporation acquiring its debt securities
or other collateral directly or indirectly pledged by investors in the Debt Exchangeable
for Common Equity.
“
Debt Exchangeable for Preferred Equity
” means a security or combination of securities
(together in this definition, “
securities
”) that:
(i) gives the holder a beneficial interest in (a) debt securities of the Corporation or
its subsidiaries (in this definition, the “issuer”) that are Non-Cumulative and include a
provision requiring it to issue (or use commercially reasonable efforts to issue) one or
more types of APM Qualifying Securities raising proceeds at least equal to the deferred
distributions on such debt securities commencing not later than two years after the issuer
first defers distributions on such securities and that are the most junior subordinated debt
of the issuer (or rank
pari passu
with the most junior subordinated debt of the issuer) and
(b) a fractional interest in a stock purchase contract for Qualifying Preferred Stock;
(ii) provides that the holders directly or indirectly grant to the issuer a security
interest in such debt securities and their proceeds (including any substitute collateral
permitted under the transaction documents) to secure the holders’ direct or indirect
obligation to purchase stock pursuant to such stock purchase contracts;
(iii) includes a remarketing feature pursuant to which such debt securities of the
issuer are remarketed to new holders commencing within five years from the date of issuance
of the security or earlier in the event of an early settlement event based on (a) one or
more financial tests set forth in the terms of the instrument governing such debt
exchangeable for preferred equity or (b) the dissolution of the issuer;
(iv) provides for the proceeds raised in the remarketing to be used to purchase
Qualifying Preferred Stock under the stock purchase contracts and, if there has not been a
successful remarketing by the first Distribution Date that is six years after the date of
issuance of such debt securities of the issuer, provides that the stock purchase contracts
will be settled by the issuer exercising its remedies as a secured party with respect to
such debt securities or other collateral directly or indirectly pledged by holders in the
Debt Exchangeable for Preferred Equity;
(v) includes a Qualifying Replacement Capital Covenant,
provided
that such replacement
capital covenant will apply to such securities and to the Qualifying Preferred Stock and
will not include Debt Exchangeable for Preferred Equity as a replacement security for such
securities or the Qualifying Preferred Stock; and
5
(vi) after the issuance of such Qualifying Preferred Stock, provides the holder of the
security with a beneficial interest in such Qualifying Preferred Stock.
“
Distribution Date
” means, as to any securities or combination of securities, the dates on
which Distributions on such securities are scheduled to be made.
“
Distribution Period
” means, as to any securities or combination of securities, each period
from and including a Distribution Date for such securities to but not including the next succeeding
Distribution Date for such securities.
“
Distributions
” means, as to a security or combination of securities, dividends, interest or
other income distributions to the holders or beneficial owners thereof that are not Subsidiaries of
the Corporation.
“
Eligible Debt
” means, at any time, Eligible Subordinated Debt or, if no Eligible Subordinated
Debt is then outstanding, Eligible Senior Debt.
“
Eligible Senior Debt
” means, at any time in respect of any issuer, each series of outstanding
unsecured long-term indebtedness for money borrowed of such issuer that (a) upon a bankruptcy,
liquidation, dissolution or winding up of the issuer, ranks most senior among the issuer’s then
outstanding series of unsecured indebtedness for money borrowed, (b) is then assigned a rating by
at least one NRSRO (
provided
that this clause (b) shall apply on a Redesignation Date only if on
such date the issuer has outstanding senior long-term indebtedness for money borrowed that
satisfies the requirements of clauses (a), (c) and (d) that is then assigned a rating by at least
one NRSRO), (c) has an outstanding principal amount of not less than $100,000,000, and (d) was
issued through or with the assistance of a commercial or investment banking firm or firms acting as
underwriters, initial purchasers or placement or distribution agents. For purposes of this
definition as applied to securities with a CUSIP number, each issuance of long-term indebtedness
for money borrowed that has (or, if such indebtedness is held by a trust or other intermediate
entity established directly or indirectly by the issuer, the securities of such intermediate entity
that have) a separate CUSIP number shall be deemed to be a series of the issuer’s long-term
indebtedness for money borrowed that is separate from each other series of such indebtedness.
“
Eligible Subordinated Debt
” means, at any time in respect of any issuer, each series of the
issuer’s then-outstanding unsecured long-term indebtedness for money borrowed that (a) upon a
bankruptcy, liquidation, dissolution or winding up of the issuer, ranks subordinate to the issuer’s
then outstanding series of unsecured indebtedness for money borrowed that ranks most senior upon
the liquidation, dissolution or winding up of the Corporation, (b) is then assigned a rating by at
least one NRSRO (
provided
that this clause (b) shall apply on a Redesignation Date only if on such
date the issuer has outstanding subordinated long-term indebtedness for money borrowed that
satisfies the requirements in clauses (a), (c) and (d) that is then assigned a rating by at least
one NRSRO), (c) has an outstanding principal amount of not less than $100,000,000, and (d) was
issued through or with the assistance of a commercial or investment banking firm or firms acting as
underwriters, initial purchasers or placement or distribution agents. For purposes of this
definition as applied to securities with a CUSIP number, each issuance of long-term indebtedness
for money borrowed that has (or, if such indebtedness is held by a trust or other intermediate
entity established directly or indirectly by the issuer, the securities of such intermediate entity
that have) a separate CUSIP number shall be deemed to be a series of the issuer’s long-term
indebtedness for money borrowed that is separate from each other series of such indebtedness.
6
“
Holder
” means, as to the Covered Debt then in effect, each holder of such Covered Debt as
reflected on the securities register maintained by or on behalf of the Corporation with respect to
such Covered Debt.
“
Initial Covered Debt
” means the Corporation’s 6.8% Debentures due November 15, 2031, CUSIP
No. 171232AE1.
“
Intent-Based Replacement Disclosure
” means, as to any security or combination of securities,
that the issuer has publicly stated its intention, either in the prospectus or other offering
document under which such securities were initially offered for sale or in filings with the
Commission made by the issuer under the Securities Exchange Act prior to or contemporaneously with
the issuance of such securities, that the issuer will redeem, purchase or defease such securities
only with the proceeds of replacement capital securities that have terms and provisions at the time
of redemption, purchase or defeasance that are as or more equity-like than the securities then
being redeemed, purchased or defeased, and which proceeds were raised within 180 days prior to the
applicable redemption, purchase or defeasance date.
“
Mandatorily Convertible Preferred Stock
” means preferred stock with (a) no prepayment
obligation of the liquidation preference on the part of the issuer thereof, whether at the election
of the holders or otherwise, and (b) a requirement that the preferred stock convert into common
stock of the Corporation within three years from the date of its issuance at a conversion ratio
within a range established at the time of issuance of the preferred stock.
“
Mandatory Trigger Provision
” means, as to any security or combination of securities,
provisions in the terms thereof or of the related transaction agreements that:
(i) require, or at its option in the case of non-cumulative perpetual preferred stock,
permit the issuer of such securities to make payment of Distributions on such securities
only pursuant to the issuance and sale of APM Qualifying Securities, within two years of a
failure to satisfy one or more financial tests set forth in the terms of such securities or
related transaction agreements, in an amount such that the net proceeds of such sale at
least equal the amount of deferred Distributions on such securities (including without
limitation all deferred and accumulated amounts) and in either case require the application
of the net proceeds of such sale to pay such deferred Distributions on those securities,
provided
that (A) if the Mandatory Trigger Provision does not require such issuance and sale
within one year of such failure, the amount of common stock or rights to acquire common
stock the net proceeds of which the issuer must apply to pay such Distributions pursuant to
such provision may not exceed the Common Cap, and (B) the amount of Qualifying Preferred
Stock and then still-outstanding Mandatorily Convertible Preferred Stock the net proceeds of
which the issuer may apply to pay such Distributions pursuant to such provision may not
exceed the Preferred Cap;
(ii) if the provisions described in clause (i) immediately above do not require such
issuance and sale within one year of such failure, include a Repurchase Restriction;
(iii) other than in the case of non-cumulative perpetual preferred stock, prohibit the
issuer of such securities from redeeming or purchasing any of its securities ranking junior
to or pari passu with any APM qualifying securities upon the liquidation, dissolution or
winding up of the Corporation the proceeds of which were used to settle deferred interest
during the relevant
7
deferral period prior to the date six months after the issuer applies the net proceeds
of the sales described in clause (i) immediately above to pay such deferred Distributions in
full; and
(iv) other than in the case of non-cumulative perpetual preferred stock, include a
Bankruptcy Claim Limitation Provision.
No remedy other than Permitted Remedies will arise by the terms of such securities or related
transaction agreements in favor of the holders of such securities as a result of the issuer’s
failure to pay Distributions because of the Mandatory Trigger Provision until Distributions have
been deferred for one or more Distribution Periods that total together at least ten years.
“
Market Disruption Events
” means one or more events or circumstances substantially similar to
those listed as “Market Disruption Events” in the Supplemental Indenture.
“
Market Value
” means, on any date, (i) in the case of Common Stock, the closing sale price per
share of Common Stock (or if no closing sale price is reported, the average of the bid and ask
prices or, if more than one in either case, the average of the average bid and the average ask
prices) on that date as reported in composite transactions by the New York Stock Exchange or, if
the Common Stock is not then listed on the New York Stock Exchange, as reported by the principal
U.S. securities exchange on which the Common Stock is traded or quoted; if the Common Stock is not
either listed or quoted on any U.S. securities exchange on the relevant date, the market price will
be the average of the mid-point of the bid and ask prices for the Common Stock on the relevant date
submitted by at least three nationally recognized independent investment banking firms selected by
the Corporation for this purpose and (ii) in the case of rights to acquire Common Stock, a value
determined by a nationally recognized independent investment banking firm or other third party
valuation firm selected by the Corporation for this purpose.
“
Measurement Date
” means, with respect to any repayment, redemption, defeasance or purchase of
the Debentures (i) on or prior to the Scheduled Maturity, the date 180 days prior to delivery of
notice of such repayment, defeasance or redemption or the date of such purchase and (ii) after the
Scheduled Maturity, the date 90 days prior to the date of such repayment, redemption, defeasance or
purchase, except that, if during the 90 days (or any shorter period) preceding the date that is 90
days prior to the date of such repayment, redemption, defeasance or purchase, net cash proceeds
were received but no repayment, redemption, defeasance or purchase was made in connection
therewith, the measurement date shall be the date upon which such 90-day (or shorter) period prior
to the 90-day period prior to the date such repayment, redemption, defeasance or purchase began.
“
Measurement Period
” with respect to any notice date or purchase date means the period (i)
beginning on the Measurement Date with respect to such notice date or purchase date and (ii) ending
on such notice date or purchase date. Measurement Periods cannot run concurrently.
“
Non-Cumulative
” means, with respect to any securities, that the issuer may elect not to make
any number of periodic Distributions without any remedy arising under the terms of the securities
or related agreements in favor of the holders, other than one or more Permitted Remedies.
Securities that include an Alternative Payment Mechanism shall also be deemed to be Non-Cumulative,
other than for the purposes of the definitions of APM Qualifying Securities and Qualifying
Preferred Stock.
“
NRSRO
” means a nationally recognized statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act or any successor provision or,
8
upon adoption, any rule for the registration of nationally recognized statistical rating
organizations adopted by the Securities and Exchange Commission.
“
Optional Deferral Provision
” means, as to any securities, provisions in the terms thereof or
of the related transaction agreements to the effect of either (a) or (b) below:
(a) (i) the issuer of such securities may, in its sole discretion, defer in whole or in
part payment of Distributions on such securities for one or more consecutive Distribution
Periods of up to five years or, if a Market Disruption Event is continuing, ten years,
without any remedy other than Permitted Remedies and (ii) an Alternative Payment Mechanism
(
provided
that such Alternative Payment Mechanism need not apply during the first 5 years of
any deferral period and need not include a Common Cap or a Preferred Cap); or
(b) the issuer of such securities may, in its sole discretion, defer in whole or in
part payment of Distributions on such securities for one or more consecutive Distribution
Periods up to ten years, without any remedy other than Permitted Remedies;
provided that Bankruptcy Claim Limitation Provision does not apply.
“
Permitted Remedies
” means, with respect to any securities, one or more of the following
remedies:
(a) rights in favor of the holders of such securities permitting such holders to elect
one or more directors of the issuer (including any such rights required by the listing
requirements of any stock or securities exchange on which such securities may be listed or
traded); and
(b) complete or partial prohibitions on the issuer paying Distributions on or
purchasing common stock or other securities that rank
pari passu
with or junior as to
Distributions to such securities for so long as Distributions on such securities, including
deferred Distributions, remain unpaid.
“
Person
” means any individual, corporation, partnership, joint venture, trust, limited
liability company, corporation or other entity, unincorporated organization or government or any
agency or political subdivision thereof.
“
Preferred Cap
” has the meaning specified in the definition of Alternative Payment Mechanism.
“
Prospectus Supplement
” has the meaning specified in Recital B.
“
Qualifying Capital Securities
” means securities (other than Common Stock, rights to acquire
Common Stock or securities exchangeable for or convertible into Common Stock) that, in the
determination of the Corporation’s Board of Directors (or a duly authorized committee thereof)
reasonably construing the definitions and other terms of this Replacement Capital Covenant, meet
one of the following criteria:
(i) in connection with any repayment, redemption, defeasance or purchase of Debentures
prior to April 15, 2017:
9
(A) securities issued by the Corporation or its Subsidiaries that (1) rank
pari
passu
with or junior to the Debentures upon the liquidation, dissolution or
winding-up of the Corporation, (2) have no maturity or a maturity of at least 60
years and (3)(i) are Non-Cumulative and are subject to a Qualifying Replacement
Capital Covenant or (ii) have a Mandatory Trigger Provision and an Optional Deferral
Provision and are subject to Intent-Based Replacement Disclosure; or
(B) securities issued by the Corporation or its Subsidiaries that (a) rank
pari
passu
with or junior upon the liquidation, dissolution or winding up of the
Corporation to the Debentures, (b) have no maturity or a maturity of at least 40
years, (c) are subject to a Qualifying Replacement Capital Covenant and (d) have a
Mandatory Trigger Provision and an Optional Deferral Provision; or
(ii) in connection with any repayment, redemption, defeasance or purchase of Debentures
on or after April 15, 2017 and prior to April 15, 2037:
(A) all types of securities described that would be Qualifying Capital
Securities on or prior to April 15, 2017;
(B) securities issued by the Corporation or its Subsidiaries that (a) rank
pari
passu
with or junior to the Debentures upon the liquidation, dissolution or
winding-up of the Corporation, (b) have no maturity or a maturity of at least 60
years, (c) are subject to a Qualifying Replacement Capital Covenant and (d) have an
Optional Deferral Provision;
(C) securities issued by the Corporation or its Subsidiaries that (1) rank
pari
passu
with or junior to the Debentures upon a liquidation, dissolution or winding up
of the Corporation, (2) are Non-Cumulative, (3) have no maturity or a maturity of at
least 60 years and (4) are subject to Intent-Based Replacement Disclosure;
(D) securities issued by the Corporation or its Subsidiaries that (a) rank
pari
passu
with or junior to the Debentures upon the liquidation, dissolution or
winding-up of the Corporation, (b) have no maturity or a maturity of at least 40
years and (c) (i) are Non-Cumulative and subject to a Qualifying Replacement Capital
Covenant or (ii) have a Mandatory Trigger Provision and an Optional Deferral
Provision and are subject to Intent-Based Replacement Disclosure;
(E) securities issued by the Corporation or its Subsidiaries that (1) rank
junior to all of the senior and subordinated debt of the Corporation other than the
Debentures upon the liquidation, dissolution or winding up of the Corporation and
the
pari passu
securities, (2) have a Mandatory Trigger Provision and an Optional
Deferral Provision and are subject to Intent-Based Replacement Disclosure and (3)
have no maturity or a maturity of at least 60 years;
(F) cumulative preferred stock issued by the Corporation or its Subsidiaries
that (a) has no prepayment obligation on the part of the issuer thereof, whether at
the election of the holders or otherwise, (b) has no maturity or a maturity of at
least 60 years and (c) is subject to a Qualifying Replacement Capital Covenant; or
(G) other securities issued by the Corporation or its Subsidiaries that (1)
rank upon a liquidation, dissolution or winding-up of the Corporation either (a)
pari passu
10
with or junior to the Debentures upon the liquidation, dissolution or winding
up of the Corporation or (b)
pari passu
with the claims of the Corporation’s trade
creditors and junior to all of the Corporation’s long-term indebtedness for money
borrowed upon the liquidation, dissolution or winding up of the Corporation (other
than the Corporation’s long-term indebtedness for money borrowed from time to time
outstanding that by its terms ranks
pari passu
with such securities on a
liquidation, dissolution or winding-up of the Corporation); and (2) either (x) have
no maturity or a maturity of at least 40 years, have a Mandatory Trigger Provision
and an Optional Deferral Provision and are subject to Intent-Based Replacement
Disclosure or (y) have no maturity or a maturity of at least 30 years, are subject
to a Qualifying Replacement Capital Covenant and have a Mandatory Trigger Provision
and an Optional Deferral Provision; or
(iii) in connection with any repayment, redemption, defeasance or purchase of
Debentures at any time after April 15, 2037:
(A) all types of securities described that would be Qualifying Capital
Securities prior to April 15, 2037;
(B) securities issued by the Corporation or its Subsidiaries that (1) rank
pari
passu
with or junior to the Debentures upon a liquidation, dissolution or winding
up, (2) either (a) have no maturity or a maturity of at least 60 years and have
Intent-Based Replacement Disclosure or (b) have no maturity or a maturity of at
least 30 years and are subject to a Qualifying Replacement Capital Covenant and (3)
have an Optional Deferral Provision;
(C) securities issued by the Corporation or its Subsidiaries that (1) rank
junior to all of the senior and subordinated debt of the Corporation other than the
Debentures and any other
pari passu
securities upon the liquidation, dissolution or
winding up of the Corporation, (2) have a Mandatory Trigger Provision, an Optional
Deferral Provision and Intent-Based Replacement Disclosure and (3) have no maturity
or a maturity of at least 30 years; or
(D) preferred stock issued by the Corporation or its Subsidiaries that either
(1) has no maturity or a maturity of at least 60 years and Intent-Based Replacement
Disclosure or (2) has a maturity of at least 40 years and is subject to a Qualifying
Replacement Capital Covenant.
“
Qualifying Preferred Stock
” means non-cumulative perpetual preferred stock issued by the
Corporation or its Subsidiaries that (a) ranks
pari passu
with or junior to all other outstanding
preferred stock of the issuer, other than a preferred stock that is issued or issuable pursuant to
a stockholders’ rights plan or similar plan or arrangement, and (b) contains no remedies other than
Permitted Remedies and either (i) is subject to Intent-Based Replacement Disclosure and has a
provision that prohibits the issuer from making any Distributions thereon upon the Corporation’s
failure to satisfy one or more financial tests set forth therein or (ii) is subject to a Qualifying
Replacement Capital Covenant.
“
Qualifying Replacement Capital Covenant
” means (a) a replacement capital covenant
substantially similar to this Replacement Capital Covenant applicable to the Debentures or (b) a
replacement capital covenant, as identified by the Corporation’s Board of Directors, or a duly
authorized
11
committee thereof, acting in good faith and in its reasonable discretion and reasonably
construing the definitions and other terms of this Replacement Capital Covenant, (i) entered into
by a company that at the time it enters into such replacement capital covenant is a reporting
company under the Securities Exchange Act and (ii) that restricts the related issuer from redeeming
or purchasing identified securities except out of the proceeds of specified Replacement Capital
Securities that have terms and provisions at the time of redemption or purchase that are as or more
equity-like than the securities then being redeemed or purchased, raised within 180 days prior to
the applicable redemption or purchase date.
“
Redesignation Date
” means, as to the Covered Debt in effect at any time, the earliest of (a)
the date that is two years prior to the final maturity date of such Covered Debt, (b) if the
Corporation elects to redeem, or the Corporation or a Subsidiary of the Corporation elects to
purchase, such Covered Debt either in whole or in part with the consequence that after giving
effect to such redemption or purchase the outstanding principal amount of such Covered Debt is less
than $100,000,000, the applicable redemption or purchase date and (c) if such Covered Debt is not
Eligible Subordinated Debt of the Corporation, the date on which the Corporation issues long-term
indebtedness for money borrowed that is Eligible Subordinated Debt.
“
Replacement Capital Covenant
” has the meaning specified in the introduction to this
instrument.
“
Replacement Capital Securities
” means
(a) Common Stock and rights to acquire Common Stock;
(b) Mandatorily Convertible Preferred Stock;
(c) Debt Exchangeable for Common Equity;
(d) Debt Exchangeable for Preferred Equity; and
(e) Qualifying Capital Securities.
“
Repurchase Restriction
” has the meaning specified in clause (c) of the definition of
“Alternative Payment Mechanism.”
“
Rights to acquire Common Stock
” includes any right to acquire Common Stock, including any
right to acquire Common Stock pursuant to a stock purchase plan or employee benefit plan.
“Scheduled Maturity”
means April 15, 2037.
“
Securities Exchange Act
” means the Securities Exchange Act of 1934, as amended from time to
time, including any successor statute.
“
Subordinated Indenture
” means the Junior Subordinated Debt Indenture, dated as of March ,
2007, between the Corporation and The Bank of New York Trust Company, N.A., as trustee, as amended
and supplemented by the Supplemental Indenture and as further amended and supplemented from time to
time in accordance with its terms.
12
“
Supplemental Indenture
” means the First Supplemental Indenture, dated as of March 29, 2007,
between the Corporation and The Bank of New York Trust Company, N.A., as trustee, as amended and
supplemented from time to time in accordance with its terms.
“
Subsidiary
” means, at any time, any Person the shares of stock or other ownership interests
of which having ordinary voting power to elect a majority of the board of directors or other
managers of such Person are at the time owned, directly or indirectly through one or more
intermediaries (including other Subsidiaries) or both, by another Person.
“
Termination Date
” has the meaning specified in Section 4(a).
13
