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Exhibit 4.3
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THE CHUBB CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
, Trustee
Indenture
Dated as of __________ __, 199_
Providing for the Issuance of
Subordinated Debt Securities
__________
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
SECTION 1.1. Certain Terms Defined . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
SECURITIES
SECTION 2.1. Forms Generally . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.2. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.3. Amount Unlimited; Issuable in Series . . . . . . . . . . 7
SECTION 2.4. Authentication and Delivery of
Securities . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.5. Execution of Securities . . . . . . . . . . . . . . . . . 11
SECTION 2.6. Certificate of Authentication . . . . . . . . . . . . . . 11
SECTION 2.7. Denomination and Date of Securities;
Payments of Interest . . . . . . . . . . . . . . . . . . 11
SECTION 2.8. Registration, Transfer and Exchange . . . . . . . . . . . 13
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.10. Cancellation of Securities; Destruction
Thereof . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.11. Temporary Securities . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest . . . . . . . . . . . . 16
SECTION 3.2. Offices for Payments, etc. . . . . . . . . . . . . . . . 16
SECTION 3.3. Appointment to Fill a Vacancy in Office
of Trustee . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.4. Paying Agents . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.5. Certificate of the Issuer . . . . . . . . . . . . . . . . 18
SECTION 3.6. Corporate Existence . . . . . . . . . . . . . . . . . . . 18
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
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SECTION 4.1. Securityholders' Lists . . . . . . . . . . . . . . . . . 18
SECTION 4.2. Reports by the Issuer . . . . . . . . . . . . . . . . . . 19
SECTION 4.3. Reports by the Trustee . . . . . . . . . . . . . . . . . 19
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default . . . . . . . . . . . . . 19
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt . . . . . . . . . . . . . . . . . 22
SECTION 5.3. Application of Proceeds . . . . . . . . . . . . . . . . . 25
SECTION 5.4. Suits for Enforcement . . . . . . . . . . . . . . . . . . 26
SECTION 5.5. Restoration of Rights on Abandonment of
Proceedings . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.6. Limitations on Suits by Securityholders . . . . . . . . . 27
SECTION 5.7. Unconditional Right of Securityholders
to Institute Certain Suits . . . . . . . . . . . . . . . 27
SECTION 5.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default . . . . . . . . . . . . . 28
SECTION 5.9. Control by Securityholders . . . . . . . . . . . . . . . 28
SECTION 5.10. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 29
SECTION 5.11. Trustee to Give Notice of Default, But
May Withhold in Certain Circumstances . . . . . . . . . . 29
SECTION 5.12. Right of Court to Require Filing of
Undertaking to Pay Costs . . . . . . . . . . . . . . . . 30
SECTION 5.13. Waiver of Stay or Extension Laws . . . . . . . . . . . . 30
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.2. Certain Rights of the Trustee . . . . . . . . . . . . . . 32
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof . . . . . . . . . . . . . . . . . . . 33
SECTION 6.4. Trustee and Agents May Hold Securities;
Collections, etc. . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.5. Moneys Held by Trustee . . . . . . . . . . . . . . . . . 34
SECTION 6.6. Compensation and Indemnification of
Trustee and Its Prior Claim . . . . . . . . . . . . . . . 34
SECTION 6.7. Right of Trustee to Rely on Officers'
Certificate, etc. . . . . . . . . . . . . . . . . . . . . 35
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SECTION 6.8. Persons Eligible for Appointment as
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.9. Resignation and Removal; Appointment of
Successor Trustee . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.10. Acceptance of Appointment by Successor
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee . . . . . . . . . . . . 38
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.2. Proof of Execution of Instruments and of
Holding of Securities . . . . . . . . . . . . . . . . . . 39
SECTION 7.3. Holders to be Treated as Owners . . . . . . . . . . . . . 40
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.5. Right of Revocation of Action Taken . . . . . . . . . . . 41
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent
of Securityholders . . . . . . . . . . . . . . . . . . . 41
SECTION 8.2. Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . . 43
SECTION 8.3. Effect of Supplemental Indenture . . . . . . . . . . . . 45
SECTION 8.4. Documents to Be Given to Trustee . . . . . . . . . . . . 45
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures . . . . . . . . . . . . . . . . . 45
SECTION 8.6. Subordination Unimpaired . . . . . . . . . . . . . . . . 45
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.2. Successor Corporation Substituted . . . . . . . . . . . . 46
SECTION 9.3. Opinion of Counsel to Trustee . . . . . . . . . . . . . . 47
ARTICLE 10
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SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of Indenture . . . . . . . . . 47
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities . . . . . . . . . . . 48
SECTION 10.3. Repayment of Moneys Held by Paying
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.4. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Three Years . . . . . . . . . 49
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability . . . . . . . . . . . . . . . . . . 49
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders . . . . . . . . . 49
SECTION 11.3. Successors and Assigns of Issuer Bound
by Indenture . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 11.4. Notices and Demands on Issuer, Trustee
and Securityholders . . . . . . . . . . . . . . . . . . . 50
SECTION 11.5. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.6. Payments Due on Saturdays, Sundays and
Holidays . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.7. Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939 . . . . . . . . . . . . 52
SECTION 11.8. New York Law to Govern . . . . . . . . . . . . . . . . . 52
SECTION 11.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.10. Effect of Headings . . . . . . . . . . . . . . . . . . . 53
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article . . . . . . . . . . . . . . . . 53
SECTION 12.2. Notice of Redemption; Partial
Redemptions . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 12.3. Payment of Securities Called for
Redemption . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 12.5. Mandatory and Optional Sinking Funds . . . . . . . . . . 56
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ARTICLE 13
CONVERSION OF SECURITIES
SECTION 13.1. Applicability of Article . . . . . . . . . . . . . . . . 59
SECTION 13.2. Exercise of Conversion Privilege . . . . . . . . . . . . 59
SECTION 13.3. No Fractional Shares . . . . . . . . . . . . . . . . . . 61
SECTION 13.4. Adjustment of Conversion Price . . . . . . . . . . . . . 61
SECTION 13.5. Notice of Certain Corporate Actions . . . . . . . . . . . 66
SECTION 13.6. Reservation of Shares of Common Stock . . . . . . . . . . 67
SECTION 13.7. Payment of Certain Taxes Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 13.8. Nonassessability . . . . . . . . . . . . . . . . . . . . 67
SECTION 13.9. Effect of Consolidation or Merger on
Conversion Privilege . . . . . . . . . . . . . . . . . . 67
SECTION 13.10. Duties of Trustee Regarding Conversion . . . . . . . . . 69
SECTION 13.11. Repayment of Certain Funds Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 14
SUBORDINATION OF SECURITIES
SECTION 14.1. Subordination of the Securities . . . . . . . . . . . . . 69
SECTION 14.2. No Payment on Securities in Event of
Default on Senior Indebtedness . . . . . . . . . . . . . 70
SECTION 14.3. Distribution on Dissolution, Liquidation
and Reorganization of the Issuer . . . . . . . . . . . . 71
SECTION 14.4. Payment to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 14.5. Subrogation . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 14.6. Payment on Securities Permitted . . . . . . . . . . . . . 74
SECTION 14.7. Authorization of Holders to Trustee to
Effect Subordination . . . . . . . . . . . . . . . . . . 74
SECTION 14.8. Trustee as Holder of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 14.9. Notices to Trustee . . . . . . . . . . . . . . . . . . . 75
SECTION 14.10. No Fiduciary Duty by Trustee to Holders
of Senior Indebtedness . . . . . . . . . . . . . . . . . 75
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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THIS INDENTURE, dated as of __________ __, 199_ between The
Chubb Corporation, a New Jersey corporation (the "Issuer"), and The First
National Bank of Chicago, a national banking association (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured, subordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things,
for the authentication, delivery and administration thereof, the Issuer has
duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. CERTAIN TERMS DEFINED. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939,
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including terms defined therein by reference to the Securities Act of 1933 (the
"Securities Act") (except as herein otherwise expressly provided or unless the
context otherwise clearly requires), shall have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. 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. The
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Issuer or any committee of such 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 Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that
in Chicago, Illinois or in the city (or in any of the cities, if more than one)
in which amounts are payable, as specified in the form of such Security, is not
a day on which banking institutions are authorized by law or regulation to
close.
"CASH TRANSACTION" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand.
"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 and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"COMMON STOCK" means shares of common stock, par value $1.00
per share, of the Issuer.
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"CONVERSION PRICE" means the amount of Common Stock issuable
upon conversion of any Securities and, in the case of any specific series of
Securities, may be expressed in terms of either a conversion price or a
conversion rate.
"EVENT OF DEFAULT" means any event or condition specified as
such in Section 5.1.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other
similar terms mean the registered holder of any Security.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"INTEREST" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"ISSUER" means (except as otherwise provided in Article Six)
The Chubb Corporation, a New Jersey corporation, and, subject to Article Nine,
its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of
the Issuer signed in its name by the Chairman, Vice Chairman, the President,
any Vice President or the Treasurer of the Issuer.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman, the Vice Chairman, the President or any Vice President and by the
Treasurer or the Secretary or any Assistant Secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be satisfactory to the Trustee. Each such opinion shall comply with Section
314 of the Trust Indenture Act of 1939 and include the statements provided for
in Section 11.5, if and to the extent required hereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
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"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that
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 5.1.
"OUTSTANDING", when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the holders of such Securities (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.9 (except with respect to any
such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
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, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1 and
(ii) the principal amount of any Security denominated in a foreign currency or
currencies shall be the U.S. dollar equivalent, determined on the original
issue date of such Security, of the principal amount (or in the case of an
Original Issue Discount Security, the U.S. dollar equivalent on the original
issue date of such Security of the amount determined as provided for in (i)
above) for such Security.
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"PERIODIC OFFERING" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities pursuant to Section 2.3.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"PRINCIPAL", whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means the Chairman of the Board of Directors, any Vice Chairman of the Board of
Directors, the Chairman of the Trust Committee, the Chairman of the Executive
Committee, any Vice Chairman of the Executive Committee, the President, any
Vice President, the Cashier, the Secretary, the Treasurer, any Trust Officer,
any Assistant Trust Officer, any Assistant Vice President, any Assistant
Cashier, any Assistant Secretary, any Assistant Treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"SELF-LIQUIDATING PAPER" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Issuer for the purpose of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Issuer arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
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"SENIOR INDEBTEDNESS" shall have the meaning given to that
term in Section 14.1.
"TRUSTEE" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Six, shall
also include any successor trustee.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture was
originally executed.
"VICE PRESIDENT", when used with respect to the Issuer 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 of "Vice President".
"YIELD TO MATURITY" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
SECTION 2.1. FORMS GENERALLY. The Securities of each
series shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or pursuant to a Board Resolution (as set
forth in the Board Resolution or, to the extent established pursuant to rather
than set forth in the Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures 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 imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
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SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO,
as Trustee
By_____________________
Authorized Officer
SECTION 2.3. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and set forth in a
Board Resolution or to the extent established pursuant to (rather than set
forth in) such Board Resolutions in an Officers' Certificate detailing such
establishment, or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the
Securities of the series that 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 2.8, 2.9, 2.11, 8.5 or 12.3);
(c) the date or dates on which the principal of the
Securities of the series is payable;
(d) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the record
dates for the determination of Holders to whom interest is payable;
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(e) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(f) the price or prices at which, the period or periods
within which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Issuer, pursuant to
any sinking fund or otherwise;
(g) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(h) if other than as set forth in Article Thirteen, the
terms of any right to convert Securities of the series into shares of Common
Stock of the Issuer or other securities or property;
(i) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(j) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(k) if other than as set forth in Section 5.1, any Event of
Default with respect to the Securities of the series, if not set forth herein;
(l) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
(m) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Securities of such
series;
(n) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in which
payment of the principal of or interest on the Securities of such series shall
be payable;
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(o) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder thereof, in
a coin or currency other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon which, such
election may be made;
(p) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an index, the
manner in which such amounts shall be determined;
(q) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is not
a U.S. person in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(r) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions; and
(s) any other affirmative or negative covenants with respect
to the Securities of such series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution or Officers' Certificate referred to above
or as set forth in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may be issued from time
to time, consistent with the terms of the Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
SECTION 2.4. AUTHENTICATION AND DELIVERY OF SECURITIES.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Securities of any series executed by the
Issuer to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate
and deliver such Securities to or upon the order of the Issuer (contained in
the Issuer Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate and
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any other terms of the Securities of such series may be determined by or
pursuant to such Issuer Order and procedures. Such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or
its duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, before the first authentication of
Securities of such series, and (subject to Section 6.1) shall be fully
protected in relying upon:
(a) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities are not to be delivered
to the Issuer, provided that, with respect to Securities of a series subject to
a Periodic Offering, such Issuer Order may provide procedures acceptable to the
Trustee for the completion of authentication and delivery of securities from
time to time pursuant to oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing;
(b) any Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities were established;
(c) an Opinion of Counsel, prepared in accordance with Section
11.5, which shall state
(i) that the form or forms and terms of such
Securities have been, or will be when any conditions specified in such
Opinion of Counsel are satisfied, duly authorized by the Issuer and
established in conformity with the provisions of this Indenture; and
(ii) that such Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Issuer.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its Board of Directors or Board of Trustees,
Executive Committee, or a Trust Committee of Directors or Trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders.
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SECTION 2.5. EXECUTION OF SECURITIES. The Securities
shall be signed on behalf of the Issuer by both (a) its Chairman or its Vice
Chairman or its President or any Vice President and (b) by its Treasurer or its
Secretary or any Assistant Secretary, under its corporate seal which may, but
need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Issuer, although at the date of
the execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.6. CERTIFICATE OF AUTHENTICATION. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate
by the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
SECTION 2.7. DENOMINATION AND DATE OF SECURITIES; PAYMENTS
OF INTEREST. The Securities of each series shall be issuable as registered
securities without coupons and in denominations as shall be specified as
contemplated by Section 2.3. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any multiple thereof. The Securities
of each series shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plan as the officers of the Issuer executing
the same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.
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Each Security shall be dated the date of its authentication,
and shall bear interest, if any, from the date and shall be payable on the
dates, in each case, which shall be specified as contemplated by Section 2.3.
The person in whose name any Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Security
subsequent to the record date and prior to such interest payment date, except
if and to the extent the Issuer shall default in the payment of the interest
due on such interest payment date for such series, in which case such defaulted
interest shall then cease to be payable to the Holder on such record date by
virtue of having been such Holder and shall be paid to the persons in whose
names Outstanding Securities for such series are registered at the close of
business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar 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 such record date is a Business Day.
Subject to the provisions of Section 13.2, in the case of any
Security which is converted after any applicable record date with respect to
any interest payment date and on or prior to the next succeeding interest
payment date (other than any Security the principal of (or premium, if any, on)
which shall become due and payable, whether at final maturity or by declaration
of acceleration, call for redemption, or otherwise prior to such next
succeeding interest payment date), interest whose final maturity is on such
interest payment date shall be payable on such interest payment date
notwithstanding such conversion and such interest (whether or not punctually
paid or duly provided for) shall be paid to the person in whose name that
Security (or any one or more predecessor Securities) is registered at the close
of business on such record date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security which is converted,
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interest whose final maturity is after the date of conversion of such Security
shall not be payable.
SECTION 2.8. REGISTRATION, TRANSFER AND EXCHANGE. The
Issuer will keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 for each series of securities a register or registers
in which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, Securities of such series as in
this Article provided. Such register shall be in written form in the English
language or in any other form capable of being converted into such form within
a reasonable time. At all reasonable times such register or registers shall be
open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of like tenor and aggregate principal amount.
Any Security or Securities of any series may be exchanged for
a Security or Securities of the same series in other authorized denominations,
of like tenor and in an equal aggregate principal amount. Securities of any
series to be exchanged shall be surrendered at any office or agency to be
maintained by the Issuer for the purpose as provided in Section 3.2, and the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Security or Securities of the same series which the Securityholder
making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or the Holder's attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of
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redemption of Securities of such series to be redeemed, or (b) any Securities
selected, called or being called for redemption, in whole or in part, except,
in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.9. MUTILATED, DEFACED, DESTROYED, LOST AND
STOLEN SECURITIES. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver, a new Security of the same
series and tenor, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and substitution for the Security so destroyed, lost or stolen. In every case
the applicant for a substitute Security shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity
as may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and in the case of mutilation or defacement shall surrender
such Security to the Trustee.
Upon the issuance of any substitute Security, the Issuer 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. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
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Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. CANCELLATION OF SECURITIES; DESTRUCTION
THEREOF. All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, or for conversion, if surrendered to the Issuer or any agent
of the Issuer or the Trustee, shall be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be canceled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall destroy canceled
Securities held by it and deliver a certificate of destruction to the Issuer.
If the Issuer shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.11. TEMPORARY SECURITIES. Pending the
preparation of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such reference to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the
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Issuer and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series a like aggregate principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series.
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST. The
Issuer covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the principal of, and
interest on, each of the Securities of such series at the place or places, at
the respective times and in the manner provided in such Securities and this
Indenture. Each installment of interest on the Securities of any series may be
paid by mailing checks for such interest payable to or upon the written order
of the holders of Securities entitled thereto as they shall appear on the
registry books of the Issuer.
SECTION 3.2. OFFICES FOR PAYMENTS, ETC. So long as any of
the Securities remain outstanding, the Issuer will maintain in the Borough of
Manhattan, the City of New York, the following for each series: an office or
agency (a) where the Securities may be presented for payment, (b) where the
Securities may be presented for registration of transfer and for exchange as in
this Indenture provided and (c) where notices and demands to or upon the Issuer
in respect of the Securities or of this Indenture may be served. The Issuer
will give to the Trustee written notice of the location of any such office or
agency and of any change of location thereof. Unless otherwise specified in
accordance with Section 2.3, the Issuer hereby initially designates the
corporate trust office of The First National Bank of Chicago, 14 Wall Street,
Eighth Floor, New York, New York, 10005 (the "Corporate Trust Office"), as the
office to be maintained by it for each such purpose in the Borough of
Manhattan, the City of New York. In case the Issuer shall fail to so
designate or maintain any such office or agency or shall fail to give such
notice of the location or of any change in the
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location thereof, presentations, surrenders and demands may be made and notices
may be served at the Corporate Trust Office.
SECTION 3.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.9, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4. PAYING AGENTS. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the Securities of
any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the holders of the
Securities of such series or of the Trustee;
(b) that it will give the Trustee notice of any failure by
the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series
when the same shall be due and payable; and
(c) at any time during the continuance of any such default,
upon written request of the Trustee, forthwith to pay to the Trustee all sums
so held in trust by the paying agent.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the holders of the Securities of such
series a sum sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such action.
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Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.5. CERTIFICATE OF THE ISSUER. The Issuer will
deliver to the Trustee on or before May 1 in each year (beginning with 1996) a
brief certificate (which need not comply with Section 11.5) from the principal
executive, financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants under
the Indenture (such compliance to be determined without regard to any period of
grace or requirements of notice provided under the Indenture).
SECTION 3.6. CORPORATE EXISTENCE. Subject to Article
Nine, the Issuer will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Issuer shall not be
required to preserve any such right or franchise if it shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer.
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. SECURITYHOLDERS' LISTS. If and so long as
the Trustee shall not be the Security registrar for the Securities of any
series, the Issuer will furnish or cause to be furnished to the Trustee a list
in such form as the Trustee may reasonably require of the names and addresses
of the holders of the Securities of each series pursuant to Section 312 of the
Trust Indenture Act of 1939:
(a) semi-annually not more than 15 days after each record
date for the payment of interest on such Securities, as hereinabove specified,
as of such record date and on dates to be
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determined pursuant to Section 2.3 for non-interest bearing securities in each
year, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished.
SECTION 4.2. REPORTS BY THE ISSUER. The Issuer covenants
to file with the Trustee, within 15 days after the Issuer is required to file
the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934.
SECTION 4.3. REPORTS BY THE TRUSTEE. Any Trustee's Report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before July 15 in each year following the date hereof, so
long as any Securities are outstanding hereunder, and be dated as of a date
convenient to the Trustee but no more than 60 nor less than 45 days prior
thereto.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. EVENT OF DEFAULT DEFINED; ACCELERATION OF
MATURITY; WAIVER OF DEFAULT. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the
principal of 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
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(c) 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
(d) default in the performance, or breach, of any covenant or
warranty of the Issuer 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 Issuer by
the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of all 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
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer 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 Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
assignment, adjustment or composition of, as in respect of, the Issuer under any
applicable federal or state law or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer 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 60 consecutive days; or
(f) the Issuer 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 Issuer 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
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(g) any other Event of Default established pursuant to Section
2.3 for the Securities for such series.
If an Event of Default described in clauses (a), (b), (c), (d)
or (g) above (if the Event of Default under clause (d) is with respect to less
than all series of Securities then Outstanding) occurs and is continuing, then,
and in each and every such case, unless the principal of all of the Securities
of such 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 Securityholders), 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. If an Event of Default described in clause (d)
(if the Event of Default under clause (d) is with respect to all series of
Securities then Outstanding), (e) or (f) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities 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 then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), 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 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.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of the Securities of any
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of
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interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series, (or at the respective
rates of interest or Yields to Maturity of all the Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad faith,
and if any and all Events of Default under the Indenture, other than the
non-payment of the principal of Securities of such series which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein--then and in every such case the holders of a majority in
aggregate principal amount of all the Securities of such series, each series
voting as a separate class by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 5.2. COLLECTION OF INDEBTEDNESS BY TRUSTEE;
TRUSTEE MAY PROVE DEBT. The Issuer covenants that (a) in case default shall be
made in the payment of any installment of interest on any of the Securities of
any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default
shall be made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise (including any payments to any sinking fund or
analogous obligation) then upon demand of the Trustee, the Issuer will pay to
the Trustee for the benefit of the Holders of the Securities of such series the
whole amount that then shall have become due and payable on all Securities of
series for
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principal (including any payments to any sinking fund or analogous obligation)
or interest, as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the Trustee
and each predecessor Trustee, their respective agents, attorneys and counsel,
and any expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
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(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial proceedings
relative to the Issuer or other obligor upon the Securities of any series, or
to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee
on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
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All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities or the production thereof on
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the holders of the Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any holders of such Securities parties to any
such proceedings.
SECTION 5.3. APPLICATION OF PROCEEDS. Any moneys
collected by the Trustee pursuant to this Article in respect of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which
monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially paid, or
upon surrender if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6;
SECOND: Subject to the provisions of Article Fourteen, in
case the principal of the Securities of such series in respect of
which moneys have been collected shall not have become and be then due
and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of
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interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: Subject to the provisions of Article Fourteen, in case
the principal of the Securities of such series in respect of which
moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with
interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments
of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Securities of such series, then to the payment of such principal
and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: Subject to the provisions of Article Fourteen, to the
payment of the remainder, if any, to the Issuer or any other person
lawfully entitled thereto.
SECTION 5.4. SUITS FOR ENFORCEMENT. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5. RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee or any Holder shall have instituted any
proceeding to enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every such
case the
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Issuer and the Trustee shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings
had been taken.
SECTION 5.6. LIMITATIONS ON SUITS BY SECURITYHOLDERS. No
holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action or proceedings
in its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 5.9;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other such Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series. For the protection and
enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 5.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO
INSTITUTE CERTAIN SUITS. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security to
receive payment of the principal of and interest on such Security on or after
the respective due dates expressed in such Security or to convert such
Securities in accordance with Article Thirteen, or to institute suit for the
enforcement of any such payment on or after such respective dates or any such
right of conversion, shall not be impaired or affected without the consent of
such Holder.
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SECTION 5.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR
OMISSION NOT WAIVER OF DEFAULT. Except as provided in Section 5.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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.
No delay or omission of the Trustee or of any Securityholder
to exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 5.9. CONTROL BY SECURITYHOLDERS. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time Outstanding
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 by
this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 6.1) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its Board of Directors,
the Executive Committee, or a Trust Committee of Directors or Responsible
Officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving
of said direction, it being understood that (subject to Section 6.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
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Trustee and which is not inconsistent with such direction or directions by
Securityholders.
SECTION 5.10. WAIVER OF PAST DEFAULTS. Prior to a
declaration of the acceleration of the maturity of the Securities of any series
as provided in Section 5.1, the Holders of a majority in aggregate principal
amount of the Securities of such series at the time Outstanding (each such
series voting as a separate class) may on behalf of the Holders of all the
Securities of such series waive any past default or Event of Default described
in clause (c) of Section 5.1 (or, in the case of an event specified in clause
(d) or (g) of Section 5.1 which relates to less than all series of Securities
then Outstanding, the Holders of a majority in aggregate principal amount of
the Securities then Outstanding affected thereby (each series voting as a
separate class)) may waive any such default or Event of Default, or, in the
case of an event specified in clause (d) or (g) (if the Event of Default under
clause (d) relates to all series of Securities then Outstanding), (e) or (f) of
Section 5.1 the Holders of Securities of a majority in principal amount of all
the Securities then Outstanding (voting as one class) may waive any such
default or Event of Default), and its consequences except a default in respect
of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of the Securities of such
series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
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 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall transmit to the
Securityholders of any series, as the names and addresses of such Holders
appear on the registry books, notice by mail of all defaults known to the
Trustee which have occurred with respect to such series, such notice to be
transmitted within 90 days after the occurrence thereof, unless such defaults
shall have been cured before the giving of such notice (the term "default" or
"defaults" for the purposes of this Section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would
become, an Event of
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Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities 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 or
Trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
SECTION 5.12. RIGHT OF COURT TO REQUIRE FILING OF
UNDERTAKING TO PAY 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, suffered 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' 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 Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause (d) of Section 5.1 (if the suit
relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in
the case of any suit relating to or arising under clause (d) (if the suit under
clause (d) relates to all the Securities then Outstanding), (e) or (f) of
Section 5.1, 10% in aggregate principal amount of all Securities Outstanding,
or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security on or after the due
date expressed in such Security.
SECTION 5.13. WAIVER OF STAY OR EXTENSION LAWS. The Issuer
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 Issuer (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.
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ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.1. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) 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 man would exercise or use under the circumstances in the conduct
of his own affairs.
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 wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any Series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
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;
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(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) 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 the holders pursuant to Section 5.9 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.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 6.2. CERTAIN RIGHTS OF THE TRUSTEE. In
furtherance of and subject to the Trust Indenture Act of 1939 and subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, 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, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken,
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suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the
holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Issuer upon demand; 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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
SECTION 6.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS,
DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this
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Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4. TRUSTEE AND AGENTS MAY HOLD SECURITIES;
COLLECTIONS, ETC. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and may otherwise deal with the Issuer and receive, collect, hold
and retain collections from the Issuer with the same rights it would have if it
were not the Trustee or such agent.
SECTION 6.5. MONEYS HELD BY TRUSTEE. Subject to the
provisions of Section 10.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee nor
any agent of the Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 6.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE
AND ITS PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities
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upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities,
and the Securities are hereby subordinated to such senior claim.
SECTION 6.7. RIGHT OF TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture upon
the faith thereof.
SECTION 6.8. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE.
The Trustee for each series of Securities hereunder shall at all times be a
corporation having a combined capital and surplus of at least $50,000,000, and
which is eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act of 1939. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of a
Federal, State or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. For purposes of Section
310(b) of the Trust Indenture Act of 1939, the Trustee shall not be deemed to
have a conflicting interest as a result of being Trustee in respect of the
Securities of more than one series hereunder or under the Indenture dated as of
__________ __, 199_ between the Chubb Capital Corporation, The Chubb
Corporation, as guarantor and the Trustee.
SECTION 6.9. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and by mailing
notice thereof by first class mail to Holders of the applicable series of
Securities at their last addresses as they shall appear on the Security
register. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series
by written instrument in duplicate, executed by authority of the Board of
Directors, one
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copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the Issuer
or by any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at least
six months may on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series.
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Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.9 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 6.10.
SECTION 6.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
TRUSTEE. Any successor trustee appointed as provided in Section 6.9 shall
execute and deliver to the Issuer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee with respect to all or any applicable series shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm
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that all the rights, powers, trusts and duties of the predecessor Trustee with
respect to the Securities of any series as to which the predecessor Trustee is
not retiring shall continue to be vested in the predecessor Trustee, and 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 under
separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.10 unless at the time of
such acceptance such successor trustee shall be qualified under the provisions
of Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 310(a) of the Trust Indenture Act of 1939.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.10, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities of any series for which such
successor trustee is acting as trustee at their last addresses as they shall
appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.9. If the Issuer fails to mail such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS OF TRUSTEE. Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be eligible under the provisions of Section 6.8, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that
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time any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities of any series in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF
HOLDING OF SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a
certificate of the registrar thereof. The Issuer may set a record date for
purposes of determining the identity of holders of Securities of any series
entitled to vote or consent to any action referred to in Section 7.1, which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, only holders of Securities of such series of record on
such record
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date shall be entitled to so vote or give such consent or revoke such vote or
consent.
SECTION 7.3. HOLDERS TO BE TREATED AS OWNERS. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
SECTION 7.4. SECURITIES OWNED BY ISSUER DEEMED NOT
OUTSTANDING. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which the Trustee knows are
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 Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Issuer to be owned or held by
or for the account of any of the above-described persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the
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facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 7.5. RIGHT OF REVOCATION OF ACTION TAKEN. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number of which is shown by the evidence to be
included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such
action so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor, irrespective of whether
or not any notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer pursuant
to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of Directors and
the Trustee shall consider to be for the protection
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of the Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available
to the Trustee upon such an Event of Default or may limit the right of the
Holders of a majority in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to matters
or questions arising under this Indenture or under any supplemental indenture
as the Board of Directors may deem necessary or desirable and which shall not
adversely affect the interests of the Holders of the Securities in any material
respect;
(e) to establish the forms or terms of Securities of any
series as permitted by Sections 2.1 and 2.3;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 6.10; and
(g) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(h) to change or eliminate any of the provisions of this
Indenture including, without limitation, any of the provisions set forth in
Article Fourteen, provided that any such change or elimination shall become
effective only as to Securities of any series created after the execution of
such supplemental indenture.
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(i) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article Thirteen, including providing
for the conversion of the Securities into any security (other than the Common
Stock of the Issuer) or property of the Issuer.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
its Board of Directors, and the Trustee may, from time to time and at any time,
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 any supplemental indenture or of modifying
in any manner the rights of the Holders of the Securities of each such series;
provided, that no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or change the currency
of payment of principal of or interest on any Security, or extend the time or
reduce the amount of any payment to any sinking fund or analogous obligation
relating to any Security, or impair or affect the right of any Securityholder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, or modify
the provisions of this Indenture with respect to the subordination of
Securities of any series in a manner adverse to the Holders, without the
consent of the Holder of each Security so affected,
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or (b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so offered, or (c) if
applicable, make any change that adversely affects the right to convert any
Security to which the provisions of Article Thirteen are applicable or, except
as provided in this Indenture, decrease the conversion rate or increase the
conversion price of any such Security, without the consent of the Holder of
each Security so affected, or (d) reduce to percentage of Securities of any
series necessary to consent to waive any past default under this Indenture to
less than a majority, without the consent of the Holders of each Security so
affected, or (e) modify any of the provisions of this Section 8.2, 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, provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of Section 6.9,
6.10, 6.11 and 8.2.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which 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.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the Secretary or an Assistant
Secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
7.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
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Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Issuer shall mail a notice thereof by first class mail to the Holders of
Securities of each series affected thereby at their addresses as they shall
appear on the registry books of the Issuer, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.4. DOCUMENTS TO BE GIVEN TO TRUSTEE. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with
the applicable provisions of this Indenture.
SECTION 8.5. NOTATION ON SECURITIES IN RESPECT OF
SUPPLEMENTAL INDENTURES. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to
any action taken at any such meeting. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then outstanding.
SECTION 8.6. SUBORDINATION UNIMPAIRED. No provision in
any supplemental indenture that affects the superior position of the holders of
Senior Indebtedness shall be effective against holders of Senior Indebtedness.
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ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS. The Issuer covenants that it will not merge into or consolidate with
any other Person, or sell, convey or lease all or substantially all of its
assets to any Person, and the Issuer shall not permit any Person to consolidate
with or merge into the Issuer or sell, convey or lease all or substantially all
of its assets to the Issuer unless (i) either the Issuer shall be the
continuing corporation, or the successor Person, or the Person which acquires
by sale, conveyance or lease all or substantially all the assets of the Issuer
shall be a corporation organized under the laws of the United States of America
or any State thereof and shall expressly assume the due and punctual payment of
the principal of and interest on all the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Issuer,
including without limitation, the conversion rights, if any, shall be provided
for in accordance with Article Thirteen, by supplemental indenture satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation, and
(ii) the Issuer or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, conveyance or
lease be in default in the performance of any such covenant or condition.
SECTION 9.2. SUCCESSOR CORPORATION SUBSTITUTED. In case
of any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Issuer 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 Issuer to the
Trustee for authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of 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
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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, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) and the assumption of the obligations and covenants
under the Securities and this Indenture in accordance with Section 9.1 the
Issuer shall be discharged from all obligations and covenants under this
Indenture and the Securities and the Issuer may be liquidated and dissolved.
SECTION 9.3. OPINION OF COUNSEL TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of
Counsel, prepared in accordance with Section 11.5, as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE. If
at any time (a) the Issuer shall have paid or caused to be paid the principal
of and interest on all the Securities of any series outstanding hereunder
(other than Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9) as and when the same shall
have become due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of any series theretofore authenticated
(other than any Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section
2.9) or (c) (i) all the Securities of such series not theretofore delivered to
the Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 10.4) or direct obligations of the United
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States of America, backed by its full faith and credit ("Government
Obligations"), maturing as to principal and interest in such amounts and at
such times as will insure the availability of cash sufficient to pay at
maturity or upon redemption all Securities of such series (other than any
Securities of such series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.9) not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Issuer shall also pay or cause to be paid all other
sums payable hereunder by the Issuer with respect to Securities of such series,
then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer
and exchange, and the Issuer's right of optional redemption, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
holders to receive payments of principal thereof and interest thereon upon the
original stated due dates thereof (but not upon acceleration), and remaining
rights of the holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them), and the Trustee, on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series; provided, that the
rights of Holders of the Securities to receive amounts in respect of principal
of and interest on the Securities held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Issuer agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
SECTION 10.2. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. Subject to Section 10.4, all moneys deposited with the
Trustee pursuant to Section 10.1 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
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SECTION 10.3. REPAYMENT OF MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this Indenture with
respect to Securities of any series, all moneys then held by any paying agent
under the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Issuer, be repaid to it or paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 10.4. RETURN OF MONEYS HELD BY TRUSTEE AND PAYING
AGENT UNCLAIMED FOR THREE YEARS. Any moneys or government obligations
deposited with or paid to the Trustee or any paying agent for the payment of
the principal of or interest on any Security of any series and not applied but
remaining unclaimed for three years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Security of
such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to
such moneys shall thereupon cease.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER 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 Issuer or of any successor,
either directly or through the Issuer 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.
SECTION 11.2. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT
OF PARTIES AND SECURITYHOLDERS. Nothing in this Indenture or in the
Securities, expressed or implied, shall give
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or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
SECTION 11.3. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 11.4. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
SECURITYHOLDERS. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to The Chubb Corporation, 15 Mountain View Road, P.O. Box
1615, Warren, NJ 07061-1615, Attn: Treasurer. Any notice, direction, request
or demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at The First National Bank of Chicago, One First National Plaza, Chicago,
IL 60670-0126, Attention: Corporate Trust Services Division.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at the last address of the Securityholder as it appears in the
Security register. 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.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
and Securityholders when such notice
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is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
SECTION 11.5. OFFICERS' CERTIFICATES AND OPINIONS OF
COUNSEL; STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand
by the Issuer to the Trustee to take any action under any of the provisions of
this Indenture, the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent 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 have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) 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, (c) a statement that, in the opinion of such
person, 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 (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the 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, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are
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erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the
Issuer 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 Issuer, 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.
SECTION 11.6. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS. If the date of maturity of interest on or principal of the
Securities of any series or the date fixed for redemption or repayment of any
such Security or the last day on which a Holder has the right to convert a
Security at a particular conversion price shall not be a Business Day, then
payment of interest or principal, or any conversion need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 11.7. CONFLICT OF ANY PROVISION OF INDENTURE WITH
TRUST INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 318, inclusive, of the Trust
Indenture Act of 1939 (an "incorporated" provision), such incorporated
provision shall control.
SECTION 11.8. NEW YORK LAW TO GOVERN. This Indenture and
each Security shall be deemed to be a contract under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws
of such State.
SECTION 11.9. COUNTERPARTS. This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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SECTION 11.10. EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
SECTION 12.2. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS.
Notice of redemption to the Holders of Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such series at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i)
the principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) that payment will be made upon presentation
and surrender of such Securities, (vi) that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, (vii) that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue and (viii) if applicable, the
conversion price, and that the date on which the right to convert the principal
of the Securities or the portions thereof to be redeemed will terminate will be
the date fixed for redemption and the place or places where such Securities may
be surrendered for conversion. In case any Security of a series is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and
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shall state that on and after the date fixed for redemption, upon surrender of
such Security, a new Security or Securities of such series in any authorized
denomination and in principal amount equal to the unredeemed portion thereof
will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date
specified in the notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying agents (or, if
the Issuer is acting as its own paying agent, set aside, segregate and hold in
trust as provided in Section 3.4) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption, other than any Securities called for redemption on that
date which have been converted prior to the date of such deposit. If less than
all the outstanding Securities of a series are to be redeemed, the Issuer will
deliver to the Trustee at least 70 days prior to the date fixed for redemption
an Officers' Certificate stating the aggregate principal amount of Securities
to be redeemed.
If any Security or portion thereof called for redemption is
converted, any money deposited with the Trustee or with any paying agent or so
segregated and held in trust for the redemption of such Security or portion
thereof shall (subject to any right of the Holder of such Security or any
predecessor Security to receive interest as provided in the last paragraph of
Section 2.7) be paid to the Issuer upon Issuer request or, if then held by the
Issuer, shall be discharged from such trust.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in the manner specified in such Securities
or specified pursuant to Section 2.3, or, if no manner is specified in the
Securities or pursuant to Section 2.3, then in such manner as it shall deem
appropriate and fair, Securities of such Series to be redeemed in whole or in
part. Securities may be redeemed in part in an amount equal to any authorized
denomination for Securities of such series. If any Security selected for
partial redemption is converted in part before termination of the conversion
right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Securities which have been converted during a
selection of Securities to be redeemed shall
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be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series 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.
SECTION 12.3. PAYMENT OF SECURITIES CALLED FOR REDEMPTION.
If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue and, except as provided in Sections 6.5 and
10.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that any installment of interest becoming due on or prior to the date
fixed for redemption shall be payable to the Holders of such Securities
registered as such on the relevant record date subject to the terms and
provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such
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series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 12.4. EXCLUSION OF CERTAIN SECURITIES FROM
ELIGIBILITY FOR SELECTION FOR REDEMPTION. If this Section has been specified
in accordance with Section 2.3 to be applicable to the Securities of any
series, then Securities or such series shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer.
SECTION 12.5. MANDATORY AND OPTIONAL SINKING FUNDS. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date".
If this paragraph has been specified in accordance with
Section 2.3 to be applicable to the Securities of any series, then in lieu of
making all or any part of any mandatory sinking fund payment with respect to
any series of Securities in cash, the Issuer may at its option (a) deliver to
the Trustee Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory sinking fund) by the
Issuer or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by
the Issuer and delivered to the Trustee for cancellation pursuant to Section
2.7, (b) receive credit for Securities of a series which have been converted
pursuant to Article Thirteen, (c) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (d)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
Unless this paragraph has been specified in accordance with
Section 2.3 to be inapplicable to the Securities of any
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series, an amount equal to 20% of the aggregate principal amount of Securities
of any series that have been repurchased by the Issuer and canceled by the
Trustee or delivered to the Trustee for cancellation shall be credited
(without crediting any portion of such Securities more than once with respect
to any particular sinking fund payment) against, and shall thereby reduce, the
aggregate amount of the next succeeding and each subsequent sinking fund
payment required to be made with respect to Securities of such series.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 11.5)
signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series, (b) stating
that none of such Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such written statement (or reasonably promptly thereafter if
acceptable to the Trustee). Such written statement shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Issuer,
on or before any such sixtieth day, to deliver such written statement and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding
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sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall
so request) with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such
amount shall be $50,000 or less and the Issuer makes no such request then it
shall be carried over until a sum in excess of $50,000 is available. The
Trustee shall select, in the manner provided in Section 12.2, for redemption on
such sinking fund payment date a sufficient principal amount of Securities of
such series to absorb said cash, as nearly as may be, shall (if requested in
writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities of any
series which are (a) owned by the Issuer or an entity known by the Trustee to
be directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, as shown by the Security register, and
not known to the Trustee to have been pledged or hypothecated by the Issuer or
any such entity or (b) identified in an Officers' Certificate at least 60 days
prior to the sinking fund payment date as being beneficially owned by, and not
pledged or hypothecated by, the Issuer or an entity directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer shall be excluded from Securities of such series eligible for
selection for redemption. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section.
Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment
date, the Issuer shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued
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to the date fixed for redemption on Securities to be redeemed on the next
following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. 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 the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE 13
CONVERSION OF SECURITIES
SECTION 13.1. APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to the Securities of any series which are
convertible into shares of Common Stock of the Issuer, and the issuance of such
shares of Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 2.3 for the Securities of such
series.
SECTION 13.2. EXERCISE OF CONVERSION PRIVILEGE. In order
to exercise a conversion privilege, the Holder of a Security of a series with
such a privilege shall surrender such Security to the Issuer at the office or
agency maintained for that purpose, accompanied by written notice, in the form
set forth in or prescribed by such Security, to the Issuer that the Holder
elects to convert such Security or a specified portion thereof. Such notice
shall also state, if different from the name and address of such Holder, the
name or names (with address)in which the certificate or certificates for shares
of Common Stock which shall be issuable on such conversion shall be issued.
Securities surrendered for conversion shall (if so
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required by the Issuer or the Trustee) be duly endorsed by or accompanied by
instruments of transfer in forms satisfactory to the Issuer and the Trustee
duly executed by the registered Holder or its attorney duly authorized in
writing; and Securities so surrendered for conversion during the period from
the close of business on any record date to the opening of business on the next
succeeding interest payment date (excluding Securities or portions thereof
called for redemption during such period) shall also be accompanied by payment
in funds acceptable to the Issuer of an amount equal to the interest payable on
such interest payment date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
Section 2.7 relating to the payment of defaulted interest by the Issuer. As
promptly as practicable after the receipt of such notice and of any payment
required pursuant to a Board Resolution and, subject to Section 2.4, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as the Issuer may prescribe, the
Issuer shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, a certificate
or certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Common Stock otherwise issuable upon such conversion. Such conversion
shall be deemed to have been effected immediately prior to the close of
business on the date on which such notice and such payment, if required, shall
have been received in proper order for conversion by the Issuer and such
Security shall have been surrendered as aforesaid (unless such Holder shall
have so surrendered such Security and shall have instructed the Issuer to
effect the conversion on a particular date following such surrender and such
Holder shall be entitled to convert such Security on such date, in which case
such conversion shall be deemed to be effected immediately prior to the close
of business on such date) and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for shares of Common Stock of the
Issuer shall be issuable upon such conversion shall be deemed to have become
the Holder or Holders of record of the shares represented thereby. Except as
set forth above and subject to the final paragraph of Section 2.7, no payment
or adjustment shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on
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account of any dividends on the Common Stock of the Issuer issued upon such
conversion.
In the case of any Security which is converted in part only,
upon such conversion the Issuer shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Issuer, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the
unconverted portion of such Security.
SECTION 13.3. NO FRACTIONAL SHARES. No fractional share of
Common Stock of the Issuer shall be issued upon conversions of Securities of
any series. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion shall be computed by the Issuer on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If, except for the provisions of this
Section 13.3, any Holder of a Security or Securities would be entitled to a
fractional share of Common Stock of the Issuer upon the conversion of such
Security or Securities, or specified portions thereof, the Issuer shall pay to
such Holder an amount in cash equal to the current market value of such
fractional share computed, (i) if such Common Stock is listed or admitted to
unlisted trading privileges on a national securities exchange, on the basis of
the last reported sale price regular way on such exchange on the last trading
day prior to the date of conversion upon which such a sale shall have been
effected, or (ii) if such Common Stock is not at the time so listed or admitted
to unlisted trading privileges on a national securities exchange, on the basis
of the average of the bid and asked prices of such Common Stock in the
over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Association of Securities Dealers
Automated Quotation System, or if not so available, the fair market price as
determined by the Board of Directors. For purposes of this Section, "trading
day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than
any day on which the Common Stock is not traded on the New York Stock Exchange,
or if the Common Stock is not traded on the New York Stock Exchange, on the
principal exchange or market on which the Common Stock is traded or quoted.
The Trustee shall not have any responsibility with respect to the computation
of the Conversion Price, and may conclusively rely upon the Issuer's
determination thereof.
SECTION 13.4. ADJUSTMENT OF CONVERSION PRICE. The
Conversion Price in effect at any time shall be subject to adjustment as
follows:
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(a) In case the Issuer shall (i) pay a dividend in or
make a distribution of shares of its capital stock (whether shares of Common
Stock or of capital stock of any other class), (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares or (iv) issue by reclassification of its shares
of Common Stock any shares of capital stock of the Issuer, the conversion price
in effect immediately prior to such action shall be adjusted by the Issuer so
that the holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of capital stock of the Issuer which
he would have owned or been entitled to receive immediately following such
action had such Security been exchanged immediately prior thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
retroactively immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If, as a result of
an adjustment made pursuant to this paragraph (a), the holder of any Security
thereafter surrendered for conversion shall become entitled to receive shares
of two or more classes of capital stock of the Issuer, the Board of Directors
(whose determination shall be conclusive) shall determine the allocation of the
adjusted exchange price between or among shares of such classes of capital
stock.
(b) In case the Issuer shall issue rights or warrants to
all holders of its Common Stock entitling them (for a period expiring within 45
days after the record date mentioned below) to subscribe for or purchase shares
of Common Stock at a price per share less than the then current market price
per share (as determined pursuant to paragraph (d) below) on the record date
mentioned below, the conversion price of the Common Stock shall be adjusted so
that the same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the date of issuance of such rights or
warrants by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would purchase at such
current market price and of which the denominator shall be the number of shares
of Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of additional shares of Common Stock offered for subscription
or purchase. Such adjustment shall become effective retroactively immediately
after the record date for the determination of stockholders entitled to receive
such rights or warrants.
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(c) In case the Issuer shall distribute to all holders of
its Common Stock evidences of its indebtedness or assets (excluding any cash
dividend paid from retained earnings of the Issuer) or rights or warrants to
subscribe to securities of the Issuer (excluding those referred to in Paragraph
(b) above), then in each such case the conversion price shall be adjusted so
that the same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the date of such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (d) below) of Common Stock less the then
fair market value (as determined by the Board of Directors of the Issuer, whose
determination shall be conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights or warrants
applicable to one share of Common Stock, and of which the denominator shall be
such current market price per share of the Common Stock on the record date
mentioned below. Such adjustment shall become effective retroactively
immediately after the record date for the determination of stockholders
entitled to receive such distribution.
(d) For the purpose of any computation under paragraphs
(b) and (c) above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily closing prices for 10
consecutive Business Days commencing 10 Business Days before the day in
question. The closing price for each day shall be the last reported sales
price regular way on the New York Stock Exchange ("NYSE"), or, if not reported
for the NYSE, on the Composite Tape, or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked quotations
on the NYSE, or, if the Common Stock is not listed on the NYSE or no such
quotations are available, the average of the high bid and low asked quotations
in the over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or similar organization, or, if no such quotations are available,
the fair market price as determined by the Issuer (whose determination shall be
conclusive).
(e) In any case in which this Section 13.4 shall require
that an adjustment be made retroactively immediately following a record date,
the Issuer may elect to defer (but only until five Business Days following the
mailing by the Issuer of the Officer's Certificate described in paragraph (j)
below) issuing to the holder of any share converted after such record date (i)
the shares of Common Stock and other capital stock of the Issuer issuable upon
such conversion over and above (ii) the shares of Common Stock and other
capital stock of the Issuer issuable upon such conversion only on the basis of
the conversion price prior to adjustment.
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(f) In the case of either (i) any consolidation or merger
to which the Issuer is a party, other than a consolidation or a merger in which
the Issuer is a continuing corporation and which does not result in any
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of the Common Stock, or (ii)
any sale or conveyance to another corporation of the property of the Issuer as
an entirety or substantially as an entirety, then the holder of each
Outstanding Security shall have the right to exchange such Security into the
kind and amount of shares of stock and other securities and property (including
cash) receivable upon such consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock issuable upon conversion of such
Security immediately prior to such consolidation, merger, sale or conveyance,
subject to adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 13.4 assuming, in
the case of any consolidation, merger, sale or conveyance, such holder of
Common Stock of the Issuer (i) is not a Person with or into which the Issuer
consolidated or merged or which merged into the Issuer or to which such sale or
conveyance was made, as the case may be ("constituent Person"), or an Affiliate
of a constituent Person and (ii) failed to exercise his rights of election, if
any, as to the kind or amount of shares of stock and other securities and
property (including cash) receivable upon such consolidation, merger, sale or
conveyance (provided that if the kind or amount of shares of stock and other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance is not the same for each share of Common Stock of
the Issuer held immediately prior to such consolidation, merger, sale or
conveyance by others than a constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section 13.4 the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such consolidation, merger, sale or conveyance by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). The provisions of this
paragraph (f) shall similarly apply to successive consolidations, mergers,
sales or conveyances.
(g) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by reason
of this paragraph (g) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and, provided further that
adjustment shall be required and made in accordance with the
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provisions of this Section 13.4 (other than this paragraph (g)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the holders of shares of Common Stock. All calculations under
this Section 13.4 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. Anything in this Section 13.4 to
the contrary notwithstanding, the Issuer shall be permitted to make such
reductions in the conversion price in addition to those required by this
Section 13.4 as it in its discretion shall consider to be advisable in order
that any stock dividends, subdivision of shares, distribution of rights to
purchase stock or securities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Issuer to its stockholders shall
not be taxable to the holders of the Common Stock.
(h) In the event that at any time as a result of an
adjustment made pursuant to paragraph (a) above, the holder of any Security
thereafter surrendered for conversion shall become entitled to receive any
shares of the Issuer other than shares of its Common Stock, thereafter the
conversion price of such other shares so receivable upon conversion of any
Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in paragraphs (a) through (g) above, and the provisions
of Sections 13.1 through 13.3 and Sections 13.5 through 13.9 with respect to
the Common Stock shall apply on like or similar terms to any such other shares.
(i) Before taking any action which would cause an
adjustment reducing the then equivalent conversion price to be below the then
par value of the Common Stock, the Issuer will take any corporate action which
may, in the opinion of its counsel, be necessary in order that the Issuer may
validly and legally issue fully paid and non-assessable shares of Common Stock
at the conversion price as so adjusted.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and each
additional conversion agent, if any, an Officer's Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment, and (ii) mail or cause to be
mailed a notice of such adjustment to each Holder of Securities at his address
as the same appears on the registry books of the Company. Neither the Trustee
nor any conversion agent shall be under any responsibility to determine the
correctness of any adjustment to the Conversion Price to be made pursuant to
this Section.
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SECTION 13.5. NOTICE OF CERTAIN CORPORATE ACTIONS.
In case:
(a) the Issuer shall declare a dividend (or any other
distribution) on its Common Stock (other than dividends or distributions which
will not require an adjustment of the conversion price of Securities of any
series pursuant to Section 13.4); or
(b) the Issuer shall authorize the granting to the
holders of its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other rights (other
than any such grant for which approval of any shareholders of the Issuer is
required or which will not require an adjustment of the conversion price of
Securities of any series pursuant to Section 13.4); or
(c) of any reclassification of the Common Stock of the
Issuer (other than a subdivision or combination of its outstanding shares of
Common Stock, or any consolidation, merger or share exchange to which the
Issuer is a party and for which approval of any shareholders of the Issuer is
required or which will not require an adjustment of the conversion price of
Securities of any series pursuant to Section 13.4), or of the sale of all or
substantially all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Issuer;
then the Issuer shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Securities Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up. If at any time the Trustee shall not
be the conversion agent, a copy of such notice
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shall also forthwith be filed by the Issuer with the conversion agent.
SECTION 13.6. RESERVATION OF SHARES OF COMMON STOCK. The
Issuer shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock of the Issuer then issuable upon the conversion of all outstanding
Securities of any series that have conversion rights.
SECTION 13.7. PAYMENT OF CERTAIN TAXES UPON CONVERSION.
The Issuer will pay any and all taxes that may be payable in respect of the
issue or delivery of shares of its Common Stock on conversion of Securities
pursuant hereto. The Issuer shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of its Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the person requesting such issue has paid to the
Issuer the amount of any such tax, or has established, to the satisfaction of
the Issuer, that such tax has been paid.
SECTION 13.8. NONASSESSABILITY. The Issuer covenants that
all shares of its Common Stock which may be issued upon conversion of
Securities will upon issue in accordance with the terms hereof be duly and
validly issued and fully paid and nonassessable.
SECTION 13.9. EFFECT OF CONSOLIDATION OR MERGER ON
CONVERSION PRIVILEGE. In case of any consolidation of the Issuer with, or
merger of the Issuer into or with any other Person, or in the case of a
statutory share exchange to which the Issuer is a party or in case of any sale
or conveyance of all or substantially all of the properties or assets of the
Issuer (including cash), the Issuer or the Person formed by such consolidation
or the Person into which the Issuer shall have been merged or the Person which
shall have acquired such assets, or the surviving entity in such share
exchange, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding of any series that is convertible into Common Stock of the Issuer
shall have the right, which right shall be the exclusive conversion right
thereafter available to said Holder (until the expiration of the conversion
right of such Security), to convert such Security into the kind and amount of
shares of stock or other securities or property (including cash) receivable
upon such consolidation, merger, share exchange, conveyance or sale by a holder
of the number of shares of Common Stock of the Issuer
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into which such Security might have been converted immediately prior to such
consolidation, merger, share exchange, conveyance or sale, subject to
compliance with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidation, mergers, share
exchanges, conveyances or sales. It is expressly agreed and understood that
anything in this Indenture to the contrary notwithstanding, if pursuant to such
merger, consolidation, share exchange, conveyance or sale, holders of
outstanding shares of Common Stock of the Issuer do not receive shares of
common stock of the surviving corporation but receive other securities, cash or
other property or any combination thereof, Holders of Securities shall not have
the right to thereafter convert their Securities into common stock of the
surviving corporation or the corporation which shall have acquired such assets,
but rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock of the Issuer into which the Securities held by such
holder might have been converted immediately prior to such consolidation,
merger, share exchange, conveyance or sale, all as more fully provided in the
first sentence of this Section 13.9. Anything in this Section 13.9 to the
contrary notwithstanding, the provisions of this Section 13.9 shall not apply
to a merger or consolidation of another corporation with or into the Issuer or
any share exchange to which the Issuer is a party pursuant to which both of the
following conditions are applicable: (i) the Issuer is the surviving or
successor corporation and (ii) the outstanding shares of Common Stock of the
Issuer are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant to
the terms of such merger, consolidation or share exchange.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger, share exchange, conveyance or
sale, or as to the appropriate adjustments of the conversion prices applicable
with respect thereto, the Trustee shall be furnished with and may accept the
certificate or opinion of an independent certified public accountant with
respect thereto; and, in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely thereon, and shall not be responsible or
accountable to any Holder of Securities for any provision in conformity
therewith or approved by such independent certified accountant which may be
contained in said supplemental indenture.
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SECTION 13.10. DUTIES OF TRUSTEE REGARDING CONVERSION.
Neither the Trustee nor any conversion agent shall at anytime be under any duty
or responsibility to any Holder of Securities of any series that is convertible
into Common Stock of the Issuer to determine whether any facts exist which may
require any adjustment of the conversion price, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, whether herein or in any supplemental indenture, any resolutions of
the Board of Directors or written instrument executed by one or more officers
of the Issuer provided to be employed in making the same. Neither the Trustee
nor any conversion agent shall be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock of the Issuer, or
of any securities or property, which may at any time be issued or delivered
upon the conversion of any Securities and neither the Trustee nor any
conversion agent makes any representation with respect thereto. Subject to the
provisions of Section 6.1, neither the Trustee nor any conversion agent shall
be responsible for any failure of the Issuer to issue, transfer or deliver any
shares of its Common Stock or stock certificates or other securities or
property upon the surrender of any Security for the purpose of conversion or to
comply with any of the covenants of the Issuer contained in this Article
Thirteen or in the applicable supplemental indenture, resolutions of the Board
of Directors or written instrument executed by one or more duly authorized
officers of the Issuer.
SECTION 13.11. REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.
Any funds which at any time shall have been deposited by the Issuer or on its
behalf with the Trustee or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for the sinking fund referred to in
Article Twelve hereof) and which shall not be required for such purposes
because of the conversion of such Securities as provided in this Article
Thirteen shall after such conversion be repaid to the Issuer by the Trustee
upon the Issuer's written request.
ARTICLE 14
SUBORDINATION OF SECURITIES
SECTION 14.1. SUBORDINATION OF THE SECURITIES. The Issuer
covenants and agrees, and each holder of Securities, by his acceptance thereof,
likewise covenants and agrees, that the indebtedness evidenced by the
Securities (including coupons) and the payment of the principal thereof,
premium, if any, and interest thereon shall be subordinate and subject in right
of
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payment, to the extent and in the manner hereinafter set forth, to the prior
payment in full of all Senior Indebtedness. For purposes of this Article
Fourteen, "Senior Indebtedness" means the principal of, premium, if any, and
unpaid interest on the following, whether outstanding at the date hereof or
thereafter incurred or created: (i) indebtedness of the Issuer for money
borrowed (including purchase-money obligations) evidenced by notes or other
written obligations, (ii) indebtedness of the Issuer evidenced by securities
(other than the Securities), debentures, bonds or other securities issued under
the provisions of an indenture or similar instrument, (iii) obligations of the
Issuer as lessee under capitalized leases and leases of property made as part
of any sale and leaseback transactions, (iv) indebtedness of others of any of
the kinds described in the preceding clauses (i) through (iii) assumed or
guaranteed by the Issuer and (v) renewals, extensions and refundings of, and
indebtedness and obligations of a successor corporation issued in exchange for
or in replacement of, indebtedness or obligations of the kinds described in the
preceding clauses (i) through (iv), unless in the case of any particular
indebtedness, obligation, renewal, extension or refunding the instrument
creating or evidencing the same or the assumption or guarantee thereof
expressly provides that such indebtedness, obligation, renewal, extension or
refunding is not superior in right of payment to the Securities.
The Issuer covenants and agrees that it will not incur any
subordinated indebtedness (other than the Securities) unless such subordinated
indebtedness is subordinate to Senior Indebtedness at least to the same extent
that the Securities are subordinate to Senior Indebtedness.
SECTION 14.2. NO PAYMENT ON SECURITIES IN EVENT OF DEFAULT
ON SENIOR INDEBTEDNESS. The Issuer shall not make any payment on account of
the principal of, or premium, if any, or interest on the Securities if, at the
time thereof or immediately after giving effect thereto, there exists (and has
not been waived) any default in the payment of principal of, premium, if any,
or interest on any Senior Indebtedness or any event of default with respect to
any Senior Indebtedness as defined therein (after giving effect to the giving
of notice and any grace period provided for therein) or in any agreement
pursuant to which any Senior Indebtedness is issued and the default is the
subject of a judicial proceeding or the Issuer receives notice of the default
from any holder of Senior Indebtedness or any trustee therefor; provided,
however, that in the event the Securities have been declared due and payable
pursuant to Section 5.1, the provisions of the next succeeding paragraph of
this Section 14.2 shall be applicable.
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In the event that any Event of Default as defined in Section
5.1 shall occur (under such circumstances that the provisions of Section 14.3
are not applicable) and as a result the Securities then Outstanding are
declared due and payable pursuant to Section 5.1, and such declaration shall
not have been rescinded or annulled, the Issuer shall promptly cause notice
thereof to be mailed to all holders of Senior Indebtedness whose names and
addresses are known to the Issuer (and not later than said mailing date shall
also cause notice thereof to be published at least once in one Authorized
Newspaper in New York, New York), and the Issuer shall not make any payment on
account of the principal of, or premium, if any, or interest on any Securities,
unless at least 120 days shall have elapsed after said declaration and unless
all principal of, premium, if any, and interest on Senior Indebtedness due at
the time of such payment (whether by acceleration of the maturity thereof or
otherwise) shall first be paid in full.
The Issuer shall give prompt written notice to the Trustee and
any paying agent of the existence of any of the conditions described in this
Section 14.2.
SECTION 14.3. DISTRIBUTION ON DISSOLUTION, LIQUIDATION AND
REORGANIZATION OF THE ISSUER. In the event of any payment or distribution of
assets or securities of the Issuer of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or winding up or
total or partial liquidation or reorganization of the Issuer, whether voluntary
or involuntary and whether in bankruptcy, insolvency or receivership
proceedings, or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Issuer, or upon other
proceedings:
(a) all principal of, premium, if any, and interest due
on all Senior Indebtedness shall first be paid in full, or due provision made
for such payment in accordance with the terms of such Senior Indebtedness,
before any payment is made on account of the principal of, premium, if any, or
interest on the indebtedness evidenced by the Securities, or before the holders
of the Securities shall be entitled to retain any assets so paid or distributed
in respect thereof; and
(b) any payment or distribution of assets or securities
of the Issuer of any kind or character, whether in cash, property or securities
(other than securities of the Issuer as reorganized or readjusted or securities
of the Issuer or any other corporation provided for by a plan of reorganization
or readjustment, which are in any such case subordinated to Senior Indebtedness
to the same extent as the Securities), to which the holders of the Securities
would be entitled except for the
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provisions of this Section 14.3, shall be paid or delivered by the Issuer or
any receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution directly to the holders of Senior
Indebtedness (pro rata to each such holder on the basis of the respective
amount of Senior Indebtedness held by such holder) or their representative or
representatives or the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with the terms of such Senior Indebtedness,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness, before any payment or distribution is made to
the holders of the Securities.
The Issuer shall give prompt written notice to the Trustee and
any paying agent of any dissolution, winding up, liquidation or reorganization
of the Issuer within the meaning of this Section 14.3.
SECTION 14.4. PAYMENT TO HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the provisions of Section 14.6, in the event that, notwithstanding
the provisions of Section 14.2 or Section 14.3, any payment or distribution of
assets of the Issuer of any kind or character, whether in cash, property or
securities (other than securities of the Issuer as reorganized or readjusted or
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment, which are in any such case subordinated to
Senior Indebtedness to the same extent as the Securities), shall be received by
the holders of the Securities (i) from the Issuer in violation of such
provisions, or (ii) from any other person under such circumstances that such
payment would, if made directly by the Issuer, be in violation of such
provisions, such payment or distribution shall immediately be paid over by such
holders to the holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture under which
any instrument evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts then due on account of the principal
of, premium, if any, and interest on such Senior Indebtedness (after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness), to the extent necessary to pay in full all such amounts then
due.
Upon any payment or distribution of assets or securities of
the Issuer referred to in Sections 14.2 and 14.3, the Trustee and any paying
agent and the holders of the
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Securities shall be entitled to rely upon any order or decree of a court of
competent jurisdiction, or upon any certificate of any liquidating trustee or
agent or other person making any payment or distribution to the Trustee and any
paying agent or to the holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness, the amount thereof or payment
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Section. In the absence of any such order,
decree, liquidating trustee, agent or other Person, the Trustee and each paying
agent shall be entitled to rely upon a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or representative
on behalf of such holder) as evidence that such Person is a holder of Senior
Indebtedness (or is such a trustee or representative). In the event that the
Trustee or any paying agent determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution referred to in
Sections 14.2 and 14.3, the Trustee or any paying agent may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee or any paying
agent as to the amount of Senior Indebtedness held by such Person, as to the
extent to which such Person is entitled to participation in such payment or
distribution, and as to other facts pertinent to the rights of such Person
under Sections 14.2 and 14.3, and if such evidence is not furnished, the
Trustee or any paying agent may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 14.5. SUBROGATION. Subject to the payment in full
of all amounts then due (whether by acceleration of the maturity thereof or
otherwise) on account of the principal of, premium, if any, and interest on all
Senior Indebtedness at the time outstanding, the holders of the Securities
shall be subrogated to the rights of each holder of Senior Indebtedness (to the
extent of the payments or distributions made to such holder pursuant to the
provisions of Sections 14.2, 14.3 and 14.4 to receive payments or distributions
of assets or securities of the Issuer applicable to the Senior Indebtedness
until the Securities shall be paid in full, and each holder of Senior
Indebtedness by the act of accepting such payments or distributions pursuant to
the provisions of Sections 14.2, 14.3 and 14.4 shall be deemed to have agreed
to the subrogation aforesaid. No payments or distributions of assets or
securities of the Issuer applicable to Senior Indebtedness which the holders of
the Securities receive by reason of their being subrogated to the rights of the
holders of such Senior Indebtedness pursuant to the provisions of Section 14.2,
14.3 and 14.4 shall, as between the Issuer, its creditors other than the
holders of Senior
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Indebtedness, and the holders of the Securities, be deemed to be a payment by
the Issuer on account of the Securities, it being understood that the
provisions of this Section 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 the Senior Indebtedness, on the other hand, and nothing contained in
this Section or elsewhere in this Agreement, or in the Securities, is intended
to or shall impair, as between the Issuer, its creditors other than the holders
of Senior Indebtedness, and the holders of the Securities, the obligation of
the Issuer, which is absolute and unconditional, to pay to the holders of the
Securities the principal of, premium, if any, and interest on the Securities,
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the holders of
the Securities and creditors of the Issuer other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Agreement, subject to the rights, if
any, under this Section of the holders of Senior Indebtedness in respect of
cash, property or securities of the Issuer received upon the exercise of any
such remedy.
SECTION 14.6. PAYMENT ON SECURITIES PERMITTED. Nothing
contained in this Section or elsewhere in this Agreement, or in any of the
Securities, shall prevent the Issuer from making payment of the principal of,
premium, if any, or interest on the Securities, at any time, except under the
conditions described in Section 14.2 and except during the pendency of any
dissolution, winding up, liquidation or reorganization of the Issuer within the
meaning of Section 14.3. Nothing contained in this Section or elsewhere in
this Agreement, or in any of the Securities, shall prevent the application by
the Trustee of any moneys deposited with it hereunder for the purpose, to the
payment of or on account of the principal of, or premium, if any, or interest
on the Securities, unless, prior to the Business Day next preceding the date
upon which such principal or premium shall have become payable, or, in the case
of any payment of or on account of interest unless, prior to two Business Days
before the date upon which such interest shall have become payable, the Trustee
shall have received written notice from the Issuer or any holder of Senior
Indebtedness or any trustee therefor of the existence of any of the conditions
described in Section 14.2 or of any dissolution, winding up, liquidation or
reorganization of the Issuer within the meaning of Section 14.3.
SECTION 14.7. AUTHORIZATION OF HOLDERS TO TRUSTEE TO EFFECT
SUBORDINATION. Each holder of Securities by his acceptance thereof authorizes
and directs the Trustee and any
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paying agent on such holder's behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of the Securities and the
holders of Senior Indebtedness, the subordination provided in this Section and
appoints the Trustee and any paying agent his attorney-in-fact for any and all
such purposes.
SECTION 14.8. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee or any paying agent shall be entitled to all the rights set forth
in this Section in respect of any Senior Indebtedness at any time held by it,
to the same extent as any other holder of Senior Indebtedness, and nothing in
this Agreement shall deprive or be construed to deprive the Trustee of its
rights as such holder.
SECTION 14.9. NOTICES TO TRUSTEE. Notwithstanding the
provisions of this Section or any other provisions of this Agreement, the
Trustee or any paying agent shall not be charged with the knowledge of the
existence of any Senior Indebtedness or of any facts which would prohibit the
making of any payment of moneys to or by the Trustee or any paying agent,
unless and until the Trustee or any paying agent shall have received written
notice thereof from the Issuer or any holder of Senior Indebtedness or any
trustee thereof.
SECTION 14.10. NO FIDUCIARY DUTY BY TRUSTEE TO HOLDERS OF
SENIOR INDEBTEDNESS. The Trustee and any paying agent 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 the Trustee or any paying agent shall mistakenly
pay over or distribute to holders of Securities or the Issuer or any other
Person moneys or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Section or otherwise.
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82
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 _______, 199_.
THE CHUBB CORPORATION
By________________________
[CORPORATE SEAL]
Attest:
By________________________
THE FIRST NATIONAL BANK
OF CHICAGO,
as Trustee
By________________________
[CORPORATE SEAL]
Attest:
By________________________
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83
STATE OF )
) ss.:
COUNTY OF )
On this day of , before me personally came
, to me personally known, who, being by me duly sworn, did depose and say that
she resides ; that she is a of The Chubb
Corporation, one of the corporations described in and which executed the above
instrument; that she knows the corporate 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 she signed
her name thereto by like authority.
[NOTARIAL SEAL]
_________________________
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On this day of , before me personally came
, to me personally known, who, being by me duly sworn, did depose and say that
she resides ; that she is a of The First
National Bank of Chicago, one of the corporations described in and which
executed the above instrument; that he knows the corporate 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]
_________________________
Notary Public
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84
Exhibit
(Form 1)
[FORM OF FACE OF NOTE]
No. $
THE CHUBB CORPORATION
% Note Due
THE CHUBB CORPORATION, a New Jersey corporation (the
"Issuer"), for value received, hereby promises to pay to or
registered assigns, at the office or agency of the Issuer in the Borough of
Manhattan, the City of New York, the principal sum of Dollars on
, in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on and
of each year, commencing , , on said principal
sum at said office or agency, in like coin or currency, at the rate per annum
specified in the title of this Note, from the or the , as
the case may be, next preceding the date of this Note to which interest has
been paid, unless the date hereof is a date to which interest has been paid, in
which case from the date of this Note, or unless no interest has been paid on
these Notes, in which case from , , until payment of said
principal sum has been made or duly provided for; provided, that payment of
interest may be made at the option of the Issuer by check mailed to the address
of the person entitled thereto as such address shall appear on the Security
register. Notwithstanding the foregoing, if the date hereof is after the
day of or , as the case may be, and before the following
or , this Note shall bear interest from such or ;
provided, that if the Issuer shall default in the payment of interest due on
such or , then this Note shall bear interest from the next
preceding or , to which interest has been paid or, if no
interest has been paid on these Notes, from .
1
85
The interest so payable on any or , will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Note is registered at the close of business on
the or
, as the case may be, next preceding such or .
The indebtedness evidenced by this Note 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 Note 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 action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed
by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, The Chubb Corporation has caused this
instrument to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
Dated:
THE CHUBB CORPORATION
By______________________________
By______________________________
2
86
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By______________________________
Authorized Officer
3
87
[FORM OF REVERSE OF NOTE]
[FOR PURPOSES OF SECTION 1232 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1954, AS AMENDED, THE ISSUE PRICE OF THIS [ ] IS
% OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS , .]
THE CHUBB CORPORATION
% Note Due
This Note is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of October 25, 1989
(herein called the "Indenture"), between the Issuer and The First National Bank
of Chicago, 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 description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Issuer and the Holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This Note is one of
a series designated as the % Notes Due (the "Notes") of the Issuer,
limited in aggregate principal amount to $ .
[The Indenture contains provisions for the defeasance at any
time of the entire indebtedness of this Note upon compliance by the Issuer of
certain conditions set forth therein, which provisions apply to this Note.]
In case an Event of Default, as defined in the Indenture, with
respect to the Notes, shall have occurred and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
4
88
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding (as
defined in the Indenture) of all series to be affected (voting as one class),
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such series;
provided, however, that no such supplemental indenture shall (i) extend the
final maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of any
interest thereon, or reduce any amount payable on redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity thereof or provable in
bankruptcy, or change the currency of payments of principal, premium, if any,
or interest, or extend the time or reduce the amount of any payment to any
sinking fund or analogous obligation relating to any Security, or impair or
affect the rights of any Holder to institute suit for the payment thereof,
without the consent of the Holder of each Security so affected, or (ii) reduce
the aforesaid percentage of Securities, the Holders of which are required to
consent to any such supplemental indenture, without the consent of the Holder
of each Security affected or (iii) reduce the percentage of Securities of this
series outstanding necessary to consent to waive any past default under the
Indenture to less than a majority, without the consent of the Holder of each
Security so affected, or (iv) modify the provisions of the sections of the
Indenture dealing with supplementary indentures or waivers of covenants, except
to increase any such percentage or to provide that certain other provisions of
the Indenture cannot be modified or waived without the consent of the Holder of
each Security affected thereby, provided, however, that this clause shall not
be deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in such sections of the
Indenture or the deletion of this proviso, in accordance with the requirements
of the Indenture. It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such Securities, the
Holders of a majority in aggregate principal amount Outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all or certain series of the Securities) may on behalf of the Holders
of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence
5
89
shall not, however, apply to a default in the payment of the principal of or
premium, if any, or interest on any of the Securities. Any such consent or
waiver by the Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of this Note and any Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and any premium
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in
denominations of $ and any multiple of $ at the office or agency of the
Issuer in the Borough of Manhattan, The City of New York, and in the manner and
subject to the limitations provided in the Indenture, but without the payment
of any service charge. Notes may be exchanged for a like aggregate principal
amount of Notes of other authorized denominations.
[The Notes may be redeemed at the option of the Issuer, as a
whole, or from time to time in part, on any date [after [__________] and] prior
to maturity, upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the Holders of Notes at
their last registered addresses, all as further provided in the Indenture, at
the following optional redemption prices (expressed in percentages of the
principal amount) together in each case with accrued interest to the date fixed
for redemption:
If redeemed during the twelve-month period beginning
,
Year Percentage Year Percentage
- ---- ---------- ---- ----------
[As and for a sinking fund for the retirement of the Notes and
so long as any of the Notes remain outstanding and unpaid, the Issuer will pay
to the Trustee in cash [(subject to the right to deliver certain Notes in
credit therefor as in the
6
90
Indenture provided)], on or before and on or before in each year
thereafter to and including an amount sufficient to redeem $____________
principal amount of the Notes (or such lesser amount equal to the principal
amount then Outstanding) at 100% of the principal amount thereof (the "sinking
fund redemption price"), together with accrued interest to the date fixed for
redemption. The Notes shall be redeemed through the operation of the sinking
fund as herein provided on and on each
thereafter to and including on notice as set forth in the Indenture.
[At its option the Issuer may pay into the sinking fund for the retirement of
Notes, in cash except as provided in the Indenture, on or before and on or
before in each year thereafter to and including an amount sufficient
to redeem an additional principal amount of Notes up to but not to exceed
$__________ at the sinking fund redemption price. To the extent that the right
to such optional sinking fund payment is not exercised in any year, it shall not
be cumulative or carried forward to any subsequent year.] The Trustee shall
select Notes for redemption, by prorating, as nearly as may be, the principal
amount of Notes to be redeemed among the Holders of Notes. The Trustee shall
make such adjustments, reallocations and eliminations to such proration as it
shall deem proper to the end that the principal amount of Notes so redeemed
shall be $1,000 or a multiple thereof, by increasing or decreasing or
eliminating the amount which would be allocable to any Holder on the basis of
exact proration by an amount not exceeding $1,000. The Trustee in its
discretion may determine the particular Notes (if there are more than one)
registered in the name of any Holder which are to be redeemed, in whole or in
part.]
[Subject to the provisions of the Indenture, the Holder of
this Note is entitled, at its option, at any time on or before __________
(except that, in case this Note or any portion hereof shall be called for
redemption, such right shall terminate with respect to this Note or portion
hereof, as the case may be, so called for redemption at the close of business
on the date fixed for redemption as provided in the Indenture unless the Issuer
defaults in making the payment due upon redemption), to convert the principal
amount of this Note (or any portion hereof which is $1,000 or an integral
multiple thereof), into fully paid and non- assessable shares (calculated as to
each conversion to the nearest 1/100th of a share) of the Common Stock of the
Issuer, as said shares shall be constituted at the date of conversion, at the
conversion price of $_____ principal amount of Notes for each share of Common
Stock, or at the adjusted conversion price in effect at the date of conversion
determined as provided in the Indenture, upon surrender of this Note, together
with the conversion notice hereon duly executed, to the Issuer at the
designated office or agency of the Issuer in
7
91
____________________, accompanied (if so required by the Issuer) by instruments
of transfer, in form satisfactory to the Issuer and to the Trustee, duly
executed by the Holder or by its duly authorized attorney in writing. Such
surrender shall, if made during any period beginning at the close of business
on a record date and ending at the opening of business on the interest payment
date next following such record date (unless this Note or the portion being
converted shall have been called for redemption on a date fixed for redemption
during such period), also be accompanied by payment in funds acceptable to the
Issuer of an amount equal to the interest payable on such interest payment date
on the principal amount of this Note then being converted. Subject to the
aforesaid requirement for payment and, in the case of a conversion after the
record date next preceding any interest payment date and on or before such
interest payment date, to the right of the Holder of this Note (or any
predecessor security) of record at such record date to receive an installment
of interest (with certain exceptions provided in the Indenture), no adjustment
is to be made on conversion for interest accrued hereon or for dividends on
shares of Common Stock issued on conversion. The Issuer is not required to
issue fractional shares upon any such conversion, but shall make adjustment
therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture. The conversion price is subject to
adjustment as provided in the Indenture. In addition, the Indenture provides
that in case of certain consolidations, mergers or share exchanges to which the
Issuer is a party or the sale of substantially all of the assets of the Issuer,
the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Note, if then outstanding, will be convertible
thereafter, during the period this Note shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon the consolidation, merger, share exchange or sale by a holder
of the number of shares of Common Stock into which this Note might have been
converted immediately prior to such consolidation, merger, share exchange or
sale (assuming such holder of Common Stock failed to exercise any rights of
election and received per share the kind and amount received per share by a
plurality of non-electing shares). In the event of conversion of this Note in
part only, a new Note or Notes for the unconverted portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except
8
92
for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, 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 hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
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93
FORM OF CONVERSION NOTICE
To The Chubb Corporation
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of the Issuer in accordance with the terms of the Indenture referred to
in this Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If this Security is being delivered on a date after the close
of business on a record date and prior to the opening of business on the
related interest payment date (unless this Security or the portion thereof
being converted has been called for redemption on a date fixed for redemption
within such period), this Notice is accompanied by payment, in funds acceptable
to the Issuer, of an amount equal to the interest payable on such interest
payment date of the principal of this Security to be converted. If shares are
to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any
amount required to be paid by the undersigned on an account of interest
accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of
$1,000, if less than all):
$__________
Dated ___________________ ______________________________
Signature
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
of the registered holder.
94
______________________________
Signature Guarantee
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered holder.
_________________________ Social Security or other Taxpayer
(Name) Identifying Number ______________
_________________________
(Address)
_________________________
Please print Name and
Address (including zip
code number)
2
95
Exhibit
(Form 2)
[FORM OF FACE OF ZERO COUPON SECURITY]
No. $
THE CHUBB CORPORATION
Zero Coupon [ ]
THE CHUBB CORPORATION, a New Jersey corporation (the
"Issuer"), for value received, hereby promises to pay to or
registered assigns, at the office or agency of the Issuer in the
Borough of Manhattan, The City of New York, the principal sum of
Dollars on , in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts. The principal of this [ ] shall not bear
interest, except in the case of default in payment of principal upon
acceleration, redemption or maturity, and in such case the amount in default
shall bear interest at the rate of % per annum (to the extent enforceable
under applicable law) from the date of default in payment to the date such
payment has been made or duly provided for, at said office or agency and in
like coin or currency.
The indebtedness evidenced by this [______] 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 [_____] is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this [_____], 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 action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
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96
Reference is made to the further provisions of this [ ]
set forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This [ ] shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed
by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, The Chubb Corporation has caused this
instrument to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
Dated:
THE CHUBB CORPORATION
By______________________________
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By__________________________
Authorized Officer
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[FORM OF REVERSE OF ]
FOR THE PURPOSES OF SECTION 1232 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1954, AS AMENDED, THE ISSUE PRICE OF THIS [ ] IS % OF
ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS , .
The Chubb Corporation
Zero Coupon [ ] Due
This [ ] is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of October 25, 1989
(herein called the "Indenture"), duly executed and delivered by the Issuer to
The First National Bank of Chicago, Trustee (herein called the "Trustee"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer and the holders of
the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and may otherwise vary
as in the Indenture provided. This [ ] is one of a series designated as
the Zero Coupon [ ] Due of the Issuer, limited in aggregate
principal amount to $ .
In case an Event of Default, as defined in the Indenture, with
respect to the Zero Coupon [ ], shall have occurred and be continuing, (i)
that portion of the principal equal to the initial public offering price of
this [ ] plus accrued amortization of the original issue discount
calculated using the "interest" method (computed in accordance with generally
accepted accounting principles in effect on the date of the Indenture) from
, to the date of acceleration may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to
the conditions provided in the Indenture.
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98
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding (as
defined in the Indenture) of all series to be affected (voting as one class),
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such series;
provided, however, that no such supplemental indenture shall (i) extend the
final maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or reduce the
amount of the principal of an Original Issue Discount Security that would be
due and payable upon acceleration or provable in bankruptcy, or change the
currency of payment of principal, premium or interest, or extend the time or
reduce the amount of any payment to any sinking fund or analogous obligation
relating to any Security, or impair or affect the rights of any Holder to
institute suit for the payment thereof, without the consent of the Holder of
each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected or (iii) reduce the percentage of Securities of this series
outstanding necessary to consent to waive any past default under the Indenture
to less than a majority, without the consent of the Holder of each Security
affected or (iv) modify the provisions of the sections of the Indenture dealing
with supplementary indentures or waivers of covenants, except to increase any
such percentage or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each Security
affected thereby, [provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in such sections of the Indenture or the
Deletion of this proviso, in accordance with the requirements of the
Indenture.] It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of the Securities of any series, the
Holders of a majority in aggregate principal amount Outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all or certain series of the Securities) may on behalf of the Holders
of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of
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99
the principal of, or interest, if any, on any of the Securities. Any such
consent or waiver by the Holder of this [ ] (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this [ ] and any [ ] which may be issued
in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this [ ] or such other [ ].
No reference herein to the Indenture and no provision of this
[ ] or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest, if
any, on this [ ] in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
The [ ] are issuable in registered form without coupons in
denominations of $ or any multiple of $ at the office or agency
of the Issuer in the Borough of Manhattan, The City of New York, and
in the manner and subject to
the limitations provided in the Indenture, but without the payment of any
service charge, [ ] may be exchanged for a like aggregate principal amount
of [ ] of other authorized denominations.
[The [ ] may be redeemed at the option of the Issuer, as a
whole, or from time to time in part, on any date prior to maturity, upon
mailing a notice of such redemption to the holders of [ ] at their last
registered addresses, all as further provided in the Indenture, at the
redemption price of 100% of the principal amount thereof.]
[Subject to the provisions of the Indenture, the Holder of
this [______] is entitled, at its option, at any time on or before __________
(except that, in case this [______] or any portion hereof shall be called for
redemption, such right shall terminate with respect to this [______] or portion
hereof, as the case may be, so called for redemption at the close of business
on the date fixed for redemption as provided in the Indenture unless the Issuer
defaults in making the payment due upon redemption), to convert the principal
amount of this [________] (or any portion hereof which is $1,000 or an integral
multiple thereof), into fully paid and non-assessable shares (calculated as to
each conversion to the nearest 1/100th of a share) of the Common Stock of the
Issuer, as said shares shall be constituted at the date of conversion, at the
conversion price of $_____ principal amount of [______] for each share of
Common Stock, or at the adjusted conversion price in effect at the date of
conversion determined as provided in the Indenture, upon surrender of this
[______], together with the conversion notice hereon duly executed, to the
Issuer at the designated office or agency of the Issuer in
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100
____________________, accompanied (if so required by the Issuer) by instruments
of transfer, in form satisfactory to the Issuer and to the Trustee, duly
executed by the Holder or by its duly authorized attorney in writing. Such
surrender shall, if made during any period beginning at the close of business
on a record date and ending at the opening of business on the interest payment
date next following such record date (unless this [_____] or the portion being
converted shall have been called for redemption on a date fixed for redemption
during such period), also be accompanied by payment in funds acceptable to the
Issuer of an amount equal to the interest payable on such interest payment date
on the principal amount of this [_____] then being converted. Subject to the
aforesaid requirement for payment and, in the case of a conversion after the
record date next preceding any interest payment date and on or before such
interest payment date, to the right of the Holder of this [_____] (or any
predecessor security) of record at such record date to receive an installment
of interest (with certain exceptions provided in the Indenture), no adjustment
is to be made on conversion for interest accrued hereon or for dividends on
shares of Common Stock issued on conversion. The Issuer is not required to
issue fractional shares upon any such conversion, but shall make adjustment
therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture. The conversion price is subject to
adjustment as provided in the Indenture. In addition, the Indenture provides
that in case of certain consolidations, mergers or share exchanges to which the
Issuer is a party or the sale of substantially all of the assets of the Issuer,
the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then outstanding, will be convertible
thereafter, during the period this [______] shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon the consolidation, merger, share exchange or sale by a holder
of the number of shares of Common Stock into which this [_____] might have been
converted immediately prior to such consolidation, merger, share exchange or
sale (assuming such holder of Common Stock failed to exercise any rights of
election and received per share the kind and amount received per share by a
plurality of non-electing shares). In the event of conversion of this [______]
in part only, a new [_____] or [_____] for the unconverted portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.
Upon due presentment for registration of transfer of this [ ] at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new [ ] or [ ] of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to
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101
the limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner
of this [ ] (whether or not this [ ] shall be overdue and
notwithstanding any notation of ownership or other writing hereon, for the
purpose of receiving payment hereof, or on account hereof, and for all other
purposes, and neither the Issuer nor the Trustee nor any authorized agent of
the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of
the Issuer in the Indenture or any indenture supplemental thereto or in any
[ ], or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either directly or through
the Issuer or any successor corporation, 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 hereof and as part of the consideration
for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
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102
Exhibit
(Form 3)
[FORM OF FACE OF EXTENDIBLE NOTE]
No. $
THE CHUBB CORPORATION
- Year Extendible Note
THE CHUBB CORPORATION, a New Jersey corporation (the "Issuer"), for
value received, hereby promises to pay to or registered assigns, at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, the principal sum of Dollars on , in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
(at the rate per annum from time to time in effect as described below)
semiannually on and of each year, commencing
, , on said principal sum at said office or agency, in like coin or
currency, from the or the , as the case may be, next
preceding the date of this Note to which interest has been paid, unless the
date hereof is a date to which interest has been paid, in which case from the
date of this Note, or unless no interest has been paid on these Notes, in which
case from , , until payment of said principal sum has been made
or duly provided; provided, however, that payment of interest may be made at
the option of the Issuer by check mailed to the address of the person entitled
thereto as such address shall appear on the Security register. Notwithstanding
the foregoing, if the date hereof is after the day of or ,
as the case may be, and before the following or , this
Note shall bear interest from such or ; provided, however,
that if the Company shall default in the payment of interest due on such
or , then this Note shall bear interest from the next preceding
or , to which interest has been paid or, if no interest has
been paid on these
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103
Notes, from . The interest so payable on any or , will,
subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note is registered
at the close of business on such or , as the case may be,
next preceding such or .
Interest on these Notes is payable at the rate of % per annum
from through , and for each -month period beginning
, and , at a rate per annum established by the
Issuer on the preceding each such , or at a rate per annum determined
by a method established by the Issuer on the preceding each such .
The Issuer shall establish the interest rate or method to be used to determine
such interest rate by delivery to the Trustee of an Officers' Certificate on
such . On or before the prior to the commencement of
the -month period to which it applies, the Trustee shall cause notice of
such interest rate or the method to be used in ascertaining the interest rate
on the following and the interest rate that would have been
applicable to such -month period had such determination been made as of
such , all as specified in the aforesaid Officers' Certificate, to be
mailed to each holder of these Notes. The Issuer shall cause notice of the
interest rate established as of the preceding the commencement
of the -month period to be enclosed with the interest payment checks
mailed to the Holders of the Notes for the period ending on the following such
.
The Notes of this series are subject to repayment on ,
, and , at the option of the Holders thereof
exercisable on or before the , but not prior to the
preceding such , at a repayment price equal to the principal amount
thereof to be repaid, together with interest payable thereon to the repayment
date, as described on the reverse side hereof.
The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Note, 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 action as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
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104
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, The Chubb Corporation has caused this instrument
to be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
THE CHUBB CORPORATION
By______________________________
By______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By__________________________
Authorized Officer
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105
[FORM OF REVERSE OF -YEAR EXTENDIBLE NOTE]
The Chubb Corporation
-Year Extendible Note
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (the "Securities") of
the series hereinafter specified, all issued or to be issued under an indenture
dated as of October __, 1989 (herein called the "Indenture"), duly executed and
delivered by the Issuer to The First National Bank of Chicago, Trustee (herein
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Issuer and the holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any),
may be subject to different sinking, purchase or analogous funds (if any) and
may otherwise vary as in the Indenture provided. This Note is one of a series
designated as the -Year Extendible Notes of the Issuer, limited in
aggregate principal amount to $ .
The -Year Extendible Notes may be redeemed at the option of
the Issuer as a whole or in part, or from time to time in part, on any date (i)
on or after , , and prior to ,
(ii) on or after , , and prior to , (iii) on
or after , , and prior to , and (iv) on or
after , and prior to maturity upon mailing a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption to the Holders of Notes at their last registered addresses, all as
further provided in the Indenture at 100% of the principal amount thereof,
together with accrued interest to the date fixed for redemption. If this Note
is redeemed in part, the principal amount that remains Outstanding shall not
be less than $ .]
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106
In case an Event of Default, as defined in the Indenture, with
respect to the -Year Extendible Notes, shall have occurred and be
continuing, the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding (as
defined in the Indenture) of all series to be affected (voting as one class),
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such series;
provided, however, that no such supplemental indenture shall (i) extend the
final maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the principal amount thereof or any premium thereon,
or reduce the rate or extend the time of payment of any interest thereon, or
reduce any amount payable on redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof or provable in bankruptcy, or
change the currency of payment of principal, premium or interest, or extend
the time or reduce the amount of any payment to any sinking fund or analogous
obligation relating to any Security, or impair or affect the rights of any
Holder to institute suit for the payment thereof, without the consent of the
Holder of each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected or (iii) reduce the percentage of Securities of this series
outstanding to consent to waive any past default under the Indenture to less
than a majority, without the consent of the Holder of each Security affected,
or (iv) modify the provisions of the sections of the Indenture dealing with
supplementary indentures or waivers of covenants, except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot
be modified or waived without the consent of the Holder of each Security
affected thereby, [provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in such sections of the Indenture or the
Deletion of this proviso, in accordance with the requirements of the
Indenture.] It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
prior to any declaration accelerating
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107
the maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or, in the case
of certain defaults or Events of Default, all or certain series of the
Securities) may on behalf of the Holders of all the Securities of such series
(or all or certain series of the Securities, as the case may be) waive any such
past default or Event of Default. The preceding sentence shall not, however,
apply to a default in the payment of the principal of or premium, if any, or
interest, on any of the Securities. Any such consent or waiver by the Holder
of this Note (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and owners of this
Note and any -Year Extendible Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other -Year Extendible Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
The -Year Extendible Notes are subject to repayment in
whole, or in part, on , , and ,
in increments of $ or multiples of $ in excess of
$ , provided that the portion of the principal amount of any
-Year Extendible Note not being repaid shall be at least $ ,
at the option of the Holders thereof at a repayment price equal to the
principal amount thereof to be repaid, together with interest payable thereon
to the repayment date. For this Note to be repaid at the option of the Holder,
the Issuer must receive at its office or agency in the Borough of Manhattan,
The City of New York, on or before the , or, if such is not
a Business Day, the next succeeding Business Day, but not earlier than the
prior to the on which the repayment price will be paid (i)
this Note, with the form entitled "Option to Elect Repayment" below duly
completed, or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of the Note, the
principal amount of the Note, the amount of such Note to be repaid, a statement
that the option to elect repayment is being made thereby and a guarantee that
the Note to be repaid with the form entitled "Option to Elect Repayment" on
the reverse thereof duly completed will be received by the Issuer no later
than five Business Days after the date of such telegram, telex,
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108
facsimile transmission or letter, and such Note and form duly completed are
received by the Issuer by such fifth Business Day. Either form of notice duly
received on or before the ___________ preceding any such shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Notes for repayment will be determined by the
Issuer, whose determination shall be final and binding.
The -Year Extendible Notes are issuable in registered form
without coupons in denominations of $ and any multiple of $
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, and in the manner and subject to the limitations provided in the
Indenture, but without the payment of any service charge, -Year
Extendible Notes may be exchanged for a like aggregate principal amount of
- -Year Extendible Notes of other authorized denominations.
[Subject to the provisions of the Indenture, the Holder of this Note
is entitled, at its option, at any time on or before __________ (except that,
in case this Note or any portion hereof shall be called for redemption, such
right shall terminate with respect to this Note or portion hereof, as the case
may be, so called for redemption at the close of business on the date fixed for
redemption as provided in the Indenture unless the Issuer defaults in making
the payment due upon redemption), to convert the principal amount of this
Issuer (or any portion hereof which is $1,000 or an integral multiple
thereof), into fully paid and non-assessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of the Common Stock of the
Issuer, as said shares shall be constituted at the date of conversion, at the
conversion price of $_____ principal amount of Notes for each share of Common
Stock, or at the adjusted conversion price in effect at the date of conversion
determined as provided in the Indenture, upon surrender of this Note, together
with the conversion notice hereon duly executed, to the Issuer at the
designated office or agency of the Issuer in ____________________, accompanied
(if so required by the Issuer) by instruments of transfer, in form
satisfactory to the Issuer and to the Trustee, duly executed by the Holder or
by its duly authorized attorney in writing. Such surrender shall, if made
during any period beginning at the close of business on a record date and
ending at the opening of business on the interest payment date next following
such record date (unless this Note or the portion being converted shall have
been called for redemption on a date fixed for redemption during such period),
also be accompanied by payment in funds acceptable to the Issuer of an amount
equal to the interest payable on such interest payment date on the principal
amount of this Note then being converted. Subject to the aforesaid requirement
for payment and, in the case
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109
of a conversion after the record date next preceding any interest payment date
and on or before such interest payment date, to the right of the Holder of this
Note (or any predecessor security) of record at such record date to receive an
installment of interest (with certain exceptions provided in the Indenture), no
adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of Common Stock issued on conversion. The Issuer is not
required to issue fractional shares upon any such conversion, but shall make
adjustment therefor in cash on the basis of the current market value of such
fractional interest as provided in the Indenture. The conversion price is
subject to adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations, mergers or share exchanges to
which the Issuer is a party or the sale of substantially all of the assets of
the Issuer, the Indenture shall be amended, without the consent of any Holders
of Securities, so that this Security, if then outstanding, will be convertible
thereafter, during the period this Note shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon the consolidation, merger, share exchange or sale by a holder
of the number of shares of Common Stock into which this Note might have been
converted immediately prior to such consolidation, merger, share exchange or
sale (assuming such holder of Common Stock failed to exercise any rights of
election and received per share the kind and amount received per share by a
plurality of non-electing shares). In the event of conversion of this Note in
part only, a new Note or Notes for the unconverted portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon, for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of
the Issuer in the Indenture or any indenture supplemental thereto or in any
-Year Extendible Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, of the Issuer or of any successor corporation,
either directly or through the Issuer or any successor corporation, under any
rule of law, statute or constitutional
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110
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 hereof and as part of the consideration for the
issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
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[FORM OF OPTION TO ELECT REPAYMENT]
Option to Elect Repayment
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at
_______________________________________________________________________________
_______________________________________________________________________________
(Please Print or Typewrite Name and Address of the Undersigned)
For this Note to be repaid the Issuer must receive at its office or
agency in the Borough of Manhattan, The City and State of New York, or at such
additional place or places of which the Issuer shall from time to time notify
the holder of the within Note, on or before the or, if such
is not a Business Day, the next succeeding Business Day, but not earlier than
the prior to , , and ,
(i) this Note with this "Option to Elect Repayment" form duly completed or
(ii) a telegram, telex, facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States of America
setting forth the name of the holder of the Note, the principal amount of the
Note, the amount of the Note to be repaid, a statement that the option to
elect repayment is being made thereby and a guarantee that the Note to be repaid
with the form entitled "Option to Elect Repayment" on the reverse of the Note
duly completed will be received by the Issuer not later than five Business
Days after the date of such telegram, telex, facsimile transmission or letter,
and such Note and form duly completed are received by the Issuer by such fifth
Business Day.
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be $ or an integral
multiple of $ in excess of $ ) which the Holder elects
to have repaid: $ ; and specify the denomination or denominations (which
shall be $ or multiple of $ in excess of $ ) of the
-Year Extendible Note or Notes to be issued to the Holder for the
portion of the within Note not being repaid (in
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the absence of such specification, one such Note will be issued for the
portion not being repaid); $ .
Dated:
______________________________________
Note: The signature to this Option to
Elect Repayment must correspond with the
name as written upon the face of the
Note in every particular without
alteration or enlargement or any other
change whatsoever.
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