EXECUTION COPY
REMARKETING AND CONTINGENT PURCHASE AGREEMENT
among
ACE LIMITED,
ACE INA HOLDINGS INC.,
ACE RHINOS TRUST
and
BANC OF AMERICA SECURITIES LLC
Dated as of June 30, 1999
REMARKETING AND CONTINGENT PURCHASE AGREEMENT
REMARKETING AND CONTINGENT PURCHASE AGREEMENT dated as of June 30, 1999
among ACE Limited, a Cayman Islands company limited by shares (the "Guarantor"),
ACE RHINOS Trust, a Delaware statutory business trust (the "Trust"), ACE INA
Holdings Inc., a Delaware corporation (the "Company"), and Banc of America
Securities LLC, as remarketing agent (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Trust shall issue 400,000 preferred securities (the "Preferred
Securities") in an aggregate stated liquidation amount of $400,000,000 and
12,372 common securities (the "Common Securities", and together with the
Preferred Securities, the "Trust Securities") in an aggregate stated liquidation
amount of $12,372,000 under the Amended and Restated Trust Agreement dated as of
June 30, 1999 by and among the Company, the Administrative Trustees, the
Delaware Trustee and the Property Trustee, (as the same may be amended from time
to time, the "Trust Agreement");
WHEREAS, the sole assets of the Trust, consisting of $412,372,000 aggregate
principal amount of Auction Rate Reset Subordinated Notes Series A (the
"Subordinated Notes") of the Company shall be purchased by the Trust from the
Company with the proceeds of the sale of the Trust Securities;
WHEREAS, upon the occurrence of a Trigger Event (as defined herein), the
Preferred Securities (or, following the distribution of Subordinated Notes to
holders of Preferred Securities upon the termination of the Trust, the
Subordinated Notes), may be remarketed in accordance with the terms hereof;
WHEREAS, the Company and the Trust have requested that Bank of America
Securities LLC ("BAS") act as the Remarketing Agent and, as such, perform the
duties described herein;
WHEREAS, the Guarantor is willing to unconditionally guarantee the
obligations of the Company hereunder; and
WHEREAS, BAS is willing to act as Remarketing Agent and, as such, to
perform such duties on the terms and conditions expressly set forth herein;
NOW, THEREFORE, in consideration of the covenants herein made, and subject
to the conditions herein set forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Trust Agreement. In
addition, as used in this Agreement, the following terms shall have the
following definitions:
"1934 Act Reports" has the meaning set forth in Section 2(b)(iv).
"Affiliated Bidder" has the meaning set forth in Section 5(b).
"Associated Person" has the meaning set forth in Article 1(ee) of the By-
Laws of the National Association of Securities Dealers, Inc.
"BAS" has the meaning set forth in the fourth recital hereto.
"Bid" means an irrevocable offer to purchase the aggregate outstanding
Liquidation Amount of Preferred Securities at the Remarketing Price or,
following any distribution of Subordinated Notes to holders of Preferred
Securities, the aggregate outstanding principal amount of such Subordinated
Notes, as the case may be, with a Distribution Rate or interest rate, as
applicable, equal to the Bid Rate specified in such Bid and with a redemption
date or maturity date, as the case may be, on the Remarketed Maturity Date.
"Bid Rate" means the proposed Distribution Rate on the Preferred Securities
or interest rate on Subordinated Notes specified in a Bid.
"Business Day" means any day other than a Saturday, Sunday or other day on
which banking institutions in The City of New York or Wilmington, Delaware are
authorized or required by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the initial paragraph hereto.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Act Regulations" means the rules and regulations promulgated
under the Exchange Act.
"Expected Reset Date" has the meaning set forth in Section 5(a)(i).
A "Failed Remarketing" shall be deemed to have occurred if, following the
giving of notice by the Requesting Holders to the Remarketing Agent as
contemplated by Section 5(a)(i), the settlement of a purchase and sale of the
Trust Securities (or, if applicable, the Subordinated Notes) shall not have
occurred within the applicable time limit specified in this Agreement and in any
event if such a settlement shall not have occurred by the 27th Business Day
following the giving of such notice by the Requesting Holders.
"Final Reset Date" has the meaning set forth in Section 5(a)(iii).
"Former Holders" has the meaning set forth in Section 5(i).
"Guarantee Agreement" means the Preferred Securities Guarantee Agreement,
dated as of June 30, 1999 executed by the Company for the benefit of the holders
of Preferred Securities, as amended, supplemented, modified or superseded from
time to time.
"Guarantor" has the meaning set forth in the initial paragraph hereto.
"Indenture" means the Indenture dated as of June 15, 1999 among the
Company, the Guarantor and The First National Bank of Chicago, as Indenture
Trustee, as supplemented by the First Supplemental Indenture dated as of June
30, 1999, and as further amended, supplemented, modified or superceded from time
to time.
"Indenture Trustee" means the Trustee pursuant to the Indenture.
"Letter Agreement" means the Letter Agreement dated as of June 29, 1999
between the Guarantor and BAS.
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"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Material Adverse Change" means any development that could be reasonably
expected to result in a material adverse change in the business, properties or
financial condition of the Guarantor and its subsidiaries, taken as a whole.
"Offering Memorandum" has the meaning set forth in Section 13.
"Preferred Securities" has the meaning set forth in the first recital
hereto.
"Reference Corporate Dealer" means a leading dealer, which shall be a
Qualified Institutional Buyer (as defined in Rule 144A under the Securities Act)
and which shall not include BAS, its Affiliates (as such term is defined in Rule
405 under the Securities Act) or its Associated Persons, of publicly traded debt
securities, to be selected by the Company.
"Remarketed Maturity Date" means the later of (i) the first anniversary of
the Remarketing Settlement Date on which Replacement Securities are issued and
(ii) September 30, 2001.
"Remarketing" means a remarketing of Preferred Securities or Subordinated
Notes pursuant to Section 5.
"Remarketing Fee" has the meaning set forth in Section 8.
"Remarketing Notice" has the meaning set forth in Section 5(a)(i).
"Remarketing Price" means (i) with respect to the Preferred Securities, a
price equal to 100.25% of the aggregate outstanding Liquidation Amount of the
Preferred Securities plus accrued and unpaid Distributions thereon (including
any Additional Distributions) (if any) and (ii) with respect to the Subordinated
Notes, a price equal to 100.25% of the aggregate outstanding principal amount of
such Subordinated Notes, plus accrued and unpaid interest thereon (including any
Additional Interest) (if any), in either case, to and including the Remarketing
Settlement Date.
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"Remarketing Settlement Date" means the third Business Day immediately
following the Reset Date.
"Renewed Remarketing" has the meaning set forth in Section 7.
"Replacement Securities" has the meaning set forth in Section 5(j).
"Representation Date" has the meaning set forth in Section 2(a).
"Requesting Holders" has the meaning set forth in Section 5(a).
"Reset Date" means any date established as a Reset Date pursuant to Section
5.
"Reset Rate" means the Winning Bid Rate.
"Secondary Purchase Agreement" means (i) with respect to the Preferred
Securities, an agreement to be dated as of the Reset Date (or such other date
permitted by applicable law) among the Company, the Trust, the Guarantor, the
Remarketing Agent and the Secondary Purchaser (selected in the manner provided
in Section 5(c)) providing for the purchase of the Preferred Securities by the
Secondary Purchaser, substantially in the form of Exhibit A hereto, or as
otherwise agreed among the Company, the Trust, the Guarantor, the Remarketing
Agent and the Secondary Purchaser and (ii) with respect to the Subordinated
Notes, an agreement to be dated as of the Reset Date (or such other date
permitted by applicable law) among the Company, the Guarantor, the Remarketing
Agent and the Secondary Purchaser (selected in accordance with Section 5(c))
providing for the purchase of the Subordinated Notes by the Secondary Purchaser,
substantially in the form of Exhibit A hereto, or as otherwise agreed among the
Subordinated Notes Issuer, the Remarketing Agent and the Secondary Purchaser.
"Secondary Purchaser" has the meaning set forth in Section 5(c).
"Securities Act" means the Securities Act of 1933, as amended.
"Subordinated Notes" has the meaning set forth in the second recital
hereto.
"Trading Day" has the meaning set forth in the Trust Agreement.
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"Transaction Documents" has the meaning set forth in the Purchase
Agreement.
"Trigger Event" has the meaning set forth in Section 5.
"Trigger Price" has the meaning set forth in Section 10.
"Trust" has the meaning set forth in the initial paragraph hereto.
"Trust Agreement" has the meaning set forth in the initial paragraph
hereto.
"Trust Securities" has the meaning set forth in the first recital hereto.
"Winning Bid Rate" has the meaning set forth in Section 5(b).
Section 2. Representations and Warranties. (a) Basic Warranties. Each
party represents and warrants to the other party as of the date hereof, the
Reset Date and the Remarketing Settlement Date (each of the foregoing dates
being hereinafter referred to as a ARepresentation Date") that:
(1) Status. It is a duly and validly existing entity under the laws
of the jurisdiction of its creation, formation or incorporation and, if
relevant under such laws, in good standing.
(2) Powers. It has the power and authority to execute, enter into and
perform its obligations under, or contemplated under, this Agreement and
consummate the transactions contemplated hereby.
(3) No Violation or Conflict. The execution, delivery and performance
by such party of this Agreement, the consummation of the transactions
herein contemplated and compliance by such party with its obligations
hereunder (A) do not violate or conflict with (1) any provision of its
organizational documents, (2) any law applicable to it, any order or
judgment of any court or other agency of government applicable to it or any
of its assets that affects the legality, validity or enforceability of this
Agreement and (B) do not and will not conflict with or constitute a breach
of any contractual restriction binding on or affecting it or any of its
assets, except, in the case of
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clauses (A)(2) and (B), for such violations or conflicts that would not
result in a Material Adverse Change.
(4) Consents. All governmental and other consents that are required
to have been obtained by it with respect to the performance by each party
of its obligations under this Agreement have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with.
(5) Obligations Binding. Its obligations under this Agreement
constitute its legal, valid and binding obligations, enforceable against it
in accordance with the terms of this Agreement, subject to bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting the enforcement of creditors' rights or by general
equitable principles.
(6) Absence of Litigation. There is not pending or, to the best of
its knowledge, threatened against or affecting it or any of its Affiliates
any action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator that
could reasonably be expected to materially and adversely affect the
legality, validity or enforceability against it of this Agreement or its
ability to perform its obligations under this Agreement.
(7) Non-Reliance. It is acting for its own account, and it has made
its own independent decision to enter into this Agreement and as to whether
this Agreement is appropriate or proper for it based upon its own judgment
and upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of any other party as
investment advice or as a recommendation to enter into this Agreement, it
being understood that information and explanations related to the terms and
conditions of this Agreement shall not be considered investment advice or a
recommendation to enter into this Agreement. No communication (written or
oral) received from any other party shall be deemed to be an assurance or
guarantee as to the expected results of this Agreement. No other party is
acting as a fiduciary for or an adviser to it with respect to this
Agreement.
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(8) Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of this Agreement. It is also capable of assuming, and assumes,
the risks of this Agreement.
(2) Representations and Warranties of the Company, the Subordinated Notes
Issuer and the Trust. Each of the Company, the Guarantor and the Trust further
represents and warrants to the Remarketing Agent as of each Representation Date,
as applicable to each such entity, that:
(1) Securities Validly Issued. The Preferred Securities and
Subordinated Notes have been, and the Replacement Preferred Securities and
the Replacement Subordinated Notes will be, validly authorized and executed
by the Trust or the Company, as the case may be, and authenticated, issued
and delivered in the manner provided for in the Trust Agreement or the
Indenture, as the case may be, and delivered against payment of the
purchase price therefor as provided in the Purchase Agreement, and
constitute, or will constitute, legally binding obligations of the Trust or
the Company, as the case may be, entitled to the benefits of the Trust
Agreement and Indenture.
(2) No Event of Default. No Event of Default under the Trust
Agreement and no Event of Default under the Indenture has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement.
(3) Compliance with Exchange Act Requirements. The Guarantor has made
all the filings with the Commission that it is required to make under the
periodic reporting requirements of the Exchange Act and the Exchange Act
Regulations, and each such filing complied as to form, at the time it was
filed, in all material respects with the requirements of the Exchange Act
and Exchange Act Regulations.
(4) No Material Misstatements. The Guarantor's most recent Annual
Report on Form 10-K, and its Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K filed after the end of the fiscal year to which such
Annual Report relates (collectively, the "1934 Act Reports"), as
supplemented by material press releases, at the time they were filed did
not,
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and, after giving effect to the transactions contemplated by the
Transaction Documents do not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(5) No Material Adverse Change. Since the respective dates as of
which information is given in the 1934 Act Reports, except as otherwise
stated therein, there has been no Material Adverse Change.
(6) Not an Investment Company. None of the Company, the Guarantor and
the Trust is an "investment company" as defined in the Investment Company
Act.
Section 3. Covenants. (a) Each of the Company and the Guarantor hereby
covenants with the Remarketing Agent as follows:
(1) Maintain Authorizations. It shall use its reasonable best efforts
to maintain in full force and effect all consents of any governmental or
other authority that are required to be obtained by it with respect to this
Agreement and shall use its reasonable best efforts to obtain any such
consents that may become necessary in the future.
(2) Comply with Laws. It shall comply in all material respects with
all applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations under
this Agreement.
(3) Furnish Documentation. It will furnish to the Remarketing Agent:
(i) unless available to the Remarketing Agent on EDGAR or the Guarantor's
website, each document filed after the date hereof by the Guarantor
pursuant to the periodic reporting requirements of the Exchange Act and
(ii) in connection with the remarketing of the Preferred Securities or
Subordinated Notes, as the case may be, such other information as the
Remarketing Agent may reasonably request from time to time. Notwithstanding
the foregoing sentence, the Guarantor agrees to provide the Remarketing
Agent with as many copies of the foregoing written materials and other
Guarantor-approved information as the Remarketing Agent may reasonably
request for use in connection with the remarketing of the Preferred
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Securities or Subordinated Notes, as the case may be, and consents to the
use thereof for such purpose.
(4) Notification. If, at any time after a Trigger Event and prior
to the Remarketing Settlement Date, any event or condition known to the
Company or the Guarantor relating to or affecting the Company, the
Guarantor, the Preferred Securities or the Subordinated Notes shall occur
that could reasonably be expected to cause any of the reports, documents,
materials or information referred to in Section 3(a)(iii) or any document
incorporated therein by reference to contain an untrue statement of a
material fact or omit to state a material fact, it shall promptly notify
the Remarketing Agent in writing of the circumstances and details of such
event or condition.
(5) Comply with Securities Laws. It will comply with the Exchange
Act and the Exchange Act Regulations in connection with the remarketing of
the Preferred Securities or Subordinated Notes, as the case may be, as
contemplated in this Agreement.
(6) No Purchase of Securities. Neither it nor any of its
subsidiaries or Affiliates shall purchase or otherwise acquire, or enter
into any agreement to purchase or otherwise acquire, any of the Preferred
Securities or Subordinated Notes prior to the remarketing thereof by the
Remarketing Agent, other than pursuant to this Agreement.
(vi) Notification of Rating Agency Action. It will provide prompt
notice by telephone, and if requested will confirm such notice in writing
(which may include facsimile or other electronic transmission), to the
Remarketing Agent of any notification or announcement by a "nationally
recognized statistical rating organization" (as defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act) with regard to a
downgrade or withdrawal of the rating of any security of the Company or the
Guarantor or the placement on what is currently called a Awatch list"or a
Acredit watch" with negative implications of any security of the Company or
the Guarantor.
(vii) Restriction on Debt Issuance. During the period commencing on
the date on which the Remarketing Agent delivers a Remarketing Notice in
accordance with Section 5(a)(i) and ending on the earlier of (A) the
related
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Remarketing Settlement Date or (B) the date of the related Failed
Remarketing, it will not, without the consent of the Remarketing Agent,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities with a
maturity of more than one year but fewer than three years.
(ix) Best Efforts. It shall use its reasonable best efforts to assist
the Remarketing Agent in remarketing the Preferred Securities or the
Subordinated Notes, as the case may be, in the manner contemplated in this
Agreement.
(2) The Remarketing Agent hereby covenants with the Company, the Guarantor
and the Trust as follows:
(1) Maintain Authorizations. The Remarketing Agent will use all of
its reasonable efforts to maintain in full force and effect all consents of
any governmental or other authority that are required to be obtained by it
with respect to this Agreement and shall use all reasonable efforts to
obtain any that may become necessary in the future.
(2) Comply with Laws. The Remarketing Agent shall comply in all
material respects with all applicable laws and orders which it may be
subject if failure so to comply would materially impair its ability to
perform its obligations under this Agreement.
Section 4. Appointment and Obligations of Remarketing Agent and
Calculation Agent; Secondary Purchaser. (a) The Trust and the Company hereby
appoint BAS as Remarketing Agent and as Calculation Agent under the Trust
Agreement and the Indenture (i) to determine, in accordance with the terms
described in Section 5(b), the Reset Rate that, when applied to the Preferred
Securities (or, following the distribution of the Subordinated Notes to holders
of the Preferred Securities upon termination of the Trust, the Subordinated
Notes), shall result in the resale of all outstanding Preferred Securities (or,
if applicable, all outstanding Subordinated Notes) at a sales price equal to the
Remarketing Price; provided that the Reset Rate shall in no event exceed the
rate permitted by applicable law, (ii) to conduct a private auction of all
outstanding Preferred Securities or Subordinated Notes, as the case may be, and
(iii) to enter into a Secondary Purchase Agreement
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with respect to the Preferred Securities or the Subordinated Notes, as the case
may be.
(3) Pursuant to the Secondary Purchase Agreement, the Secondary
Purchaser, either as the sole purchaser or as the representative of a syndicate
of purchasers designated by the Remarketing Agent, shall agree, subject to the
terms and conditions set forth therein, that the Secondary Purchaser and any
such other purchasers shall purchase such Preferred Securities or Subordinated
Notes, as the case may be, from the holders thereof at a price equal to the
Remarketing Price.
Section 4. Determination of Reset Date; Remarketing Procedures.
(a) (i) Subject to Section 7, if the Closing Price of the Ordinary
Shares on any Trading Day is less than the Trigger Price (a "Trigger
Event"), the Holders of a Majority in Liquidation Amount of the Trust
Securities, acting together as a single class, (or, if applicable, the
holders of a majority in principal amount of the Subordinated Notes)
(the "Requesting Holders") will have the right to require remarketing
of the Trust Securities (or, if applicable, the Subordinated Notes).
The Requesting Holders may exercise this right by delivering a written
notice to the Remarketing Agent at any time on or prior to the sixth
Business Day following the date such Trigger Event occurs. Upon
receipt of such notice, the Remarketing Agent shall immediately
deliver a written notice to the Company on behalf of the Requesting
Holders (a "Remarketing Notice"). If the Requesting Holders exercise
their option to require the remarketing of the Preferred Securities
(or, if applicable, the Subordinated Notes), the Reset Date shall be
the sixth Business Day after the date on which the Remarketing Notice
is delivered by the Remarketing Agent (the "Expected Reset Date").
(1) If the Requesting Holders do not exercise their right to
require the remarketing the Preferred Securities (or, if applicable,
the Subordinated Notes), pursuant to Section 5(a)(i) above with
respect to any Trigger Event, the Requesting Holders shall have the
right to require the remarketing of the Preferred Securities (or, if
applicable, the Subordinated Notes) in accordance with Section 5(a)(i)
with respect to any subsequent Trigger Event.
(2) Notwithstanding Section 5(a)(i):
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(1) the Company may, by notice to the Remarketing Agent, direct
that the Reset Date be delayed if the Company believes it will be
unable to meet the conditions to Remarketing in the absence of such a
delay; and
(2) the Remarketing Agent may, by notice to the Company direct
that the Reset Date be delayed if the Remarketing Agent believes that
a Remarketing will not be successful in the absence of such a delay,
provided that the Company and the Remarketing Agent, in either such event,
will use their reasonable best efforts to establish a delayed Reset Date
that is within five Business Days after the Expected Reset Date, but in no
event later than the 15th Business Day following the date on which the
related Remarketing Notice was delivered, or the 24th Business Day in the
case of a Renewed Remarketing to which the provisions of Section 7 apply
(as applicable, the "Final Reset Date").
(3) If the Company and the Remarketing Agent have not agreed, on or
prior to the sixth Business Day preceding the Final Reset Date, to a Reset
Date that is not later than the Final Reset Date, a Failed Remarketing
shall be deemed to have occurred.
(2) The Company shall, by notice to the Remarketing Agent no later than
five Business Days prior to the Reset Date, select and specify five Reference
Corporate Dealers. By 3:00 p.m., New York City time, on the Reset Date, the
Remarketing Agent shall request Bids from such Reference Corporate Dealers. The
Remarketing Agent or an Affiliate or Associated Person thereof (any such person,
an
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"Affiliated Bidder") may, at its option, enter a Bid. The Remarketing Agent
shall disclose to the Company the Bids obtained and determine the lowest Bid
Rate (the "Winning Bid Rate") from among the Bids obtained on the Reset Date. By
approximately 4:30 p.m., New York City time, on the Reset Date, the Remarketing
Agent shall notify the Company, the Indenture Trustee and the Property Trustee
of the Winning Bid Rate. If on a Reset Date, Bids are not submitted by at least
two Reference Corporate Dealers, or if the lowest Bid submitted would result in
a Winning Bid Rate in excess of the rate permitted by applicable law, the
Remarketing shall be deemed to be a Failed Remarketing on the corresponding
Remarketing Settlement Date. The Winning Bid Rate determined by the Remarketing
Agent, absent manifest error, shall be binding and conclusive upon the holders
of the Trust Securities, the holders of the Subordinated Notes, the Company, the
Guarantor and the Trust.
(3) On the Reset Date, the Remarketing Agent shall designate as the
Secondary Purchaser (the "Secondary Purchaser") the Reference Corporate Dealer
providing the Bid containing the Winning Bid Rate. If the Winning Bid Rate is
specified in the Bids submitted by two or more bidders, the Remarketing Agent
shall, in consultation with the Company, designate one of such bidders as the
Secondary Purchaser.
(4) On the Reset Date, the Secondary Purchaser shall enter into a
Secondary Purchase Agreement for the purchase by such Secondary Purchaser at the
Remarketing Price of the aggregate Liquidation Amount of the Preferred
Securities, with (A) a Distribution Rate equal to the Winning Bid Rate (or, if
Subordinated Notes shall have been distributed to holders of the Trust
Securities, the aggregate principal amount of Subordinated Notes with an
interest rate equal to the Winning Bid Rate) and (B) a Mandatory Redemption Date
(or, in the case of Subordinated Notes, a maturity date) on the Remarketed
Maturity Date.
(5) If a Remarketing shall have occurred pursuant to this Section 5 but
settlement of the purchase and sale of the Preferred Securities or Subordinated
Notes, as the case may be, does not occur on the corresponding Remarketing
Settlement Date, then, unless the provisions of Section 7 with respect to a
Renewed Remarketing shall apply, a Failed Remarketing shall be deemed to have
occurred on such Remarketing Settlement Date.
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(6) At the time and in the manner specified in the Secondary Purchase
Agreement, the Secondary Purchaser shall pay to the Remarketing Agent on behalf
of the holders of the Preferred Securities or Subordinated Notes, as the case
may be, on the Remarketing Settlement Date, an amount of cash equal to the
Remarketing Price.
(7) Unless otherwise agreed among the Remarketing Agent, the paying agent
(under the Trust Agreement or Indenture, as applicable) and any Former Holder,
the Remarketing Agent shall promptly pay the Remarketing Price, less the
Remarketing Fee, to the paying agent, acting solely as agent for the Former
Holders, and the paying agent shall pay such amount to the Former Holders on the
Remarketing Settlement Date in the manner specified in the Trust Agreement or
the Indenture, as the case may be. Any amounts held by the paying agent for
payment to the Former Holders shall not be property of the Trust or the Company,
as the case may be.
(8) The obligation of the Remarketing Agent to make payment to the Former
Holders in connection with the Remarketing shall be limited to the extent that
the Secondary Purchaser has delivered the Remarketing Price therefor to the
Remarketing Agent.
(9) Any outstanding Preferred Securities (or, if applicable, Subordinated
Notes) purchased on the Remarketing Settlement Date shall be deemed to be
transferred to the Secondary Purchaser and shall be replaced in the manner
provided in Section 5(j). On and after the Remarketing Settlement Date (except
in the event of a Failed Remarketing), (A) the Trust (or the Company, in the
case of the Subordinated Notes) shall make no further payments to, and the Trust
(or the Company, in the case of the Subordinated Notes) shall have no further
obligations under the Trust Agreement (or the Indenture, in the case of the
Subordinated Notes) in respect of, the holders of such replaced securities (the
"Former Holders"), (B) the Trust (or the Company, in the case of the
Subordinated Notes) shall only be obligated to make payments to the holders of
Replacement Securities and (C) the Preferred Securities (or, if applicable, the
Subordinated Notes) of the Former Holders shall no longer represent an
obligation of, or interest in, the Trust (or the Company, in the case of the
Subordinated Notes) but shall only represent a right to receive the proceeds of
the Remarketing from the paying agent under the Trust Agreement or the
Indenture, as the case may be.
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(10) (i) The Company shall cause replacement certificates evidencing the
remarketed Preferred Securities (the "Replacement Preferred Securities") to be
executed by an Administrative Trustee on behalf of the Trust and authenticated
by the Property Trustee and (ii) the Company shall cause replacement
certificates evidencing the Subordinated Notes (the "Replacement Subordinated
Notes", and together with the Replacement Preferred Securities, the "Replacement
Securities") to be executed by an authorized signatory and authenticated by the
Indenture Trustee, in each case, in accordance with the provisions of Section 5.
If the Preferred Securities are to be purchased on the Remarketing Settlement
Date, (A) the Replacement Preferred Securities shall be delivered to the
purchaser of the remarketed Preferred Securities in accordance with the terms of
the Secondary Purchase Agreement and (B) the Replacement Subordinated Notes
shall be delivered to the Trust. If the Subordinated Notes are to be purchased
on the Remarketing Settlement Date, the Replacement Subordinated Notes shall be
delivered to the purchaser of the remarketed Subordinated Notes in accordance
with the terms of the Secondary Purchase Agreement.
Section 5. Reset of Distribution Rate, Mandatory Redemption Date,
Interest Rate and Maturity Date. From and including the Reset Settlement Date on
which Replacement Securities are issued, (A) the Distribution Rate on the Trust
Securities and the interest rate on the Subordinated Notes shall be the Winning
Bid Rate and (B) the Mandatory Redemption Date of the Trust Securities and the
maturity date of the Subordinated Notes shall be the Remarketed Maturity Date.
Section 6. Renewed Remarketing. If a Remarketing has occurred pursuant
to Section 5 that would be a Failed Remarketing pursuant to Section 5(e),
because the purchase and sale of the Preferred Securities (or, if applicable,
the Subordinated Notes) do not take place on the corresponding Remarketing
Settlement Date, and the reason for such failure shall, in the good faith
determination of the Remarketing Agent (made after consultation with the
Company), result from facts or circumstances that are not due to the action or
inaction of the Company, then the provisions of Section 5 shall apply to a
second remarketing (a "Renewed Remarketing") of the Preferred Securities (or, if
applicable, the Subordinated Notes), except that the Expected Reset Date shall
be the sixth Business Day following such corresponding Remarketing Settlement
Date; provided that only one Renewed Remarketing can occur pursuant to this
Section 7, and no Renewed Remarketing shall occur after the Final Reset Date.
16
Section 7. Remarketing Fee. With respect to the Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount equal to 25 basis points (.25%) of the aggregate Liquidation Amount of
the remarketed Preferred Securities or 25 basis points (.25%) of the aggregate
principal amount of the Subordinated Notes, as the case may be, from the
purchase price received in connection with such Remarketing.
Section 8. Failed Remarketing; Contingent Purchase Obligation. The
Remarketing Agent shall give notice of any Failed Remarketing on the date such
Failed Remarketing occurs, or is deemed to occur, by 4:00 p.m., New York City
time, on the date of such Failed Remarketing, to the Company, the Property
Trustee, the Indenture Trustee and the paying agent under the Indenture. In the
case of any Failed Remarketing, the Holders of a Majority in Liquidation Amount
of the Trust Securities (or, if applicable, the holders of a majority in
principal amount of the Subordinated Notes) may, by notice in writing to the
Company not later than 15 days after the occurrence of such Failed Remarketing,
require the Company to purchase from the holders thereof, on a Pro Rata basis in
accordance with Section 9 of Annex I to the Trust Agreement, all outstanding
Trust Securities (or, if applicable, all outstanding Subordinated Notes) for a
purchase price equal to the aggregate Liquidation Amount of such Trust
Securities plus accrued but unpaid Distributions thereon (or, if applicable, the
aggregate principal amount of such Subordinated Notes plus accrued but unpaid
interest thereon). Payment of such purchase price shall be made directly to each
such holder on the tenth Business Day following the date of the notice to the
Company pursuant to the preceding sentence. Such purchase shall be without
recourse of any kind to any such holder. The parties recognize that the
occurrence of a Failed Remarketing indicates that it would not be commercially
reasonable under the circumstances to require Holders of Trust Securities (or,
if applicable, Subordinated Notes) to attempt to resell such securities
otherwise then pursuant to this Section, and that therefore in the event of any
default by the Company in its obligations under this Section, a Holder shall be
entitled to recover the price of the securities specified herein.
Section 9. Adjustments to Trigger Price. The "Trigger Price" shall
initially be equal to the product of 66 2/3% times the Closing Price for the
Ordinary Shares on the Closing Date. Following the determination by the
Remarketing Agent in its reasonable discretion that a Potential Adjustment Event
has occurred, the Remarketing Agent shall determine (after consultation with the
Company) whether such Potential Adjustment Event has a diluting or concentrative
effect on the
17
theoretical value of the Ordinary Shares and, if so, shall make the
corresponding adjustment(s), if any, to the Trigger Price. The Company shall
promptly notify the Remarketing Agent of any Potential Adjustment Event. The
Remarketing Agent may, but need not, determine the appropriate adjustment(s) by
reference to the adjustment(s) in respect of such Potential Adjustment Event
made by an options exchange to options on the Ordinary Shares traded on that
options exchange. In the event of any merger, consolidation or reorganization of
the Company, the Remarketing Agent shall determine (after consultation with the
Company) the appropriate Trigger Price as a result of such event.
Section 10. Replacement and Resignation of Remarketing Agent. (a) The
Company shall not have the right to replace BAS as the Remarketing Agent, except
in the case of bad faith, gross negligence or willful misconduct by BAS.
(1) BAS may resign at any time for good reason (after consultation with
the Company) and, subject to the following sentence, shall be discharged from
its duties and obligations hereunder or as Calculation Agent under the Trust
Agreement and the Indenture by giving no less than 10 days' notice. Any such
resignation shall become effective upon the Company's appointment of a successor
to perform the services that would otherwise be performed hereunder by the
Remarketing Agent or the Calculation Agent under the Trust Agreement and the
Indenture, as the case may be, and the agreement of any such successor so to
serve. Upon receiving notice from the Remarketing Agent that it wishes to resign
hereunder or as Calculation Agent under the Trust Agreement and the Indenture
stating the reasons for such resignation, the Company shall appoint such a
successor and enter into a new remarketing agreement with it as soon as
reasonably practicable.
Section 11. Dealing in the Securities. BAS, when acting as Remarketing
Agent hereunder or under the Secondary Purchase Agreement or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Preferred Securities or Subordinated Notes. The
Remarketing Agent may exercise any vote or join in any action with respect to
any Preferred Securities or Subordinated Notes owned by it as if it did not act
in any capacity hereunder. BAS, in its individual capacity, either as principal
or agent, may also engage in or have an interest in any financial or other
transaction with the Company as freely as if it did not act in any capacity
hereunder.
18
Section 12. Offering Memorandum. Promptly following a Trigger Event, the
Company shall furnish an offering memorandum (the "Offering Memorandum") to the
Remarketing Agent, in form and substance reasonably satisfactory to the
Remarketing Agent, to be used in the remarketing by the Secondary Purchaser
under the Secondary Purchase Agreement, and shall pay all expenses relating
thereto.
Section 14. Conditions to the Remarketing Agent's Obligations. (a) The
obligations of the Remarketing Agent, the Secondary Purchaser and any other
purchasers to perform their respective obligations hereunder and under the
Secondary Purchase Agreement shall be subject to the terms and conditions of the
Secondary Purchase Agreement.
(1) If at any time during the term of this Agreement, any Event of Default
under the Indenture or any Event of Default under the Trust Agreement, or event
that with the passage of time or the giving of notice or both would become an
Event of Default under the Indenture or an Event of Default under the Trust
Agreement, has occurred and is continuing under the Indenture or the Trust
Agreement, then the obligations and duties of the Remarketing Agent under this
Agreement shall be suspended until such default or event has been cured. The
Company shall cause the Property Trustee to provide to the Remarketing Agent
notice of all such defaults and events of which the Property Trustee is aware,
and the Subordinated Notes Issuer shall cause the Indenture Trustee to provide
to the Remarketing Agent notice of all such defaults and events of which the
Indenture Trustee is aware.
Section 15. Indemnification. The Company shall indemnify and hold
harmless the Remarketing Agent and its officers and employees from and against
all actions, claims, damages, liabilities and losses, and costs and expenses
related thereto (including reasonable legal fees and costs) relating to or
arising out of actions or omissions in any capacity hereunder and in any
capacity as Calculation Agent under the Trust Agreement and the Indenture,
except actions, claims, damages, liabilities, losses, costs and expenses to the
extent caused by (a) the bad faith, gross negligence or wilful misconduct of
such indemnified party or (b) the breach by the Remarketing Agent of its
representations, warranties and covenants hereunder. This Section 15 shall
survive the termination of the Agreement, the Trust Agreement, the Indenture and
the payment in full of all obligations under the Preferred Securities or the
Subordinated Notes, as the case may be, and this Agreement, whether by purchase,
repurchase, redemption or otherwise.
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Section 13. Termination of Remarketing Agreement. This Agreement shall
terminate as to any Remarketing Agent that is replaced on the effective date of
its replacement pursuant to Section 12(b). Notwithstanding any such termination,
the obligations of the Company set forth in Section 15 shall survive and remain
in full force and effect until all amounts payable under said Section 15 shall
have been paid in full.
Section 14. Remarketing Agent's Performance: Duty of Care; Power of
Attorney. The duties and obligations of the Remarketing Agent hereunder shall be
determined solely by the express provisions of this Agreement and the Secondary
Purchase Agreement.
The Remarketing Agent hereby accepts the obligation set forth in the Trust
Agreement and the Indenture to act as attorney-in-fact for the holders of the
Preferred Securities or Subordinated Notes, as the case may be.
Section 15. Expenses. The Company shall pay the reasonable fees and
disbursements of the Remarketing Agent's counsel incurred in connection with any
remarketing, including any Renewed Remarketing and any Failed Remarketing and
the Company shall pay the reasonable fees, expenses and disbursements of the
Remarketing Agent and its counsel in connection with the execution and delivery
of the Secondary Purchase Agreement.
Section 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to the choice of law rules thereof.
Section 17. Term of Agreement. Except as otherwise provided herein, this
Agreement shall remain in full force and effect from the date hereof until 30
days after the earlier of (i) the date all Preferred Securities (or, if
applicable, Subordinated Notes) shall have been redeemed or purchased pursuant
to Section 9 hereof and (ii) the Reset Date in connection with a Remarketing
which is not a Failed Remarketing.
Section 18. Successors and Assigns. The rights and obligations of the
Company and the Guarantor hereunder may not be assigned or delegated to any
other person without the prior written consent of the Remarketing Agent. Subject
to the provisions of Section 12, the rights and obligations of the Remarketing
Agent
20
hereunder may not be assigned or delegated to any other person without the prior
written consent of the Company. This Agreement shall inure to the benefit of and
be binding upon the Trust, the Company, the Guarantor, the Remarketing Agent and
their respective successors and assigns. The terms "successors" and "assigns"
shall not include any purchaser of Preferred Securities or Subordinated Notes
merely as a result of such purchase. This Agreement shall inure to the benefit
of the Holders of the Preferred Securities (or, if applicable the Subordinated
Notes).
Section 19. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and shall not be used in
the interpretation of any provision of this Agreement.
Section 20. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 21. Counterparts. This Agreement may be executed in counterparts,
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
Section 22. Amendments. This Agreement may be amended by any instrument in
writing signed by the parties hereto; provided that Sections 9, 27 and 28 may
not be amended in a manner adverse to the Holders of the Preferred Securities
without the consent of each such Holder.
Section 23. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail,
21
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows:
if to the Guarantor, to:
ACE Limited
The ACE Building
30 Woodbourne Avenue
Hamilton, HM08, Bermuda
Facsimile: (441) 296-7799
Attention: Peter N. Mear
if to the Company, to:
ACE INA Holdings Inc.
c/o ACE USA, Inc.
Six Concourse Parkway
Suite 2500
Atlanta, GA 30328
Facsimile: (770) 393-0888
Attention: Richard T. Gieryn, Jr.
if to the Trust, to:
ACE RHINOS Trust
c/o ACE USA, Inc.
Six Concourse Parkway
Suite 2500
Atlanta, GA 30328
Facsimile: (770) 393-0888
Attention: Richard T. Gieryn, Jr.
and if to the Remarketing Agent, to:
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Facsimile: (212) 847-5124
22
Attention: William Caccamise
or to such other address as any of the above shall specify to the other in
writing.
Section 24. Guarantee. The Guarantor hereby unconditionally guarantees to
the Remarketing Agent and each holder of a Trust Security (or, if applicable, of
a Subordinated Note) the due and punctual payment of all amounts payable by the
Company pursuant to this Agreement, when and as the same shall become due and
payable in accordance with the terms hereof, and the due and punctual
performance by the Company of all other obligations of the Company under this
Agreement. In case of the failure of the Company punctually to pay any amount
payable by it hereunder, the Guarantor hereby agrees to cause such payment to be
made punctually when and as the same shall become due and payable, as if such
payment were made by the Company.
Section 25. Senior Obligations. The obligations of the Company and the
Guarantor hereunder constitute senior unsecured obligations, and shall rank pari
passu with all other senior unsecured obligations of the Company and the
Guarantor, respectively. Such obligations are not subject to, and shall not be
affected by, the provisions of Articles 16 and 18 of the Indenture.
Section 26. Submission to Jurisdiction. The Guarantor agrees that any
judicial proceedings instituted in relation to any matter arising under any
Transaction Document may be brought in any United States Federal or New York
State court sitting in the Borough of Manhattan, The City of New York, New York
to the extent that such court has subject matter jurisdiction over the
controversy, and, by execution and delivery of this Agreement, the Guarantor
hereby irrevocably accepts, generally and unconditionally, the jurisdiction of
the aforesaid courts, acknowledges their competence and irrevocably agrees to be
bound by any judgement rendered in such proceeding. The Guarantor also
irrevocably and unconditionally waives for the benefit of the Remarketing Agent
and the Holders from time to time of the Securities (or, if applicable, the
Subordinated Notes) any immunity from jurisdiction and any immunity from legal
process (whether through service or notice, attachment prior to judgement,
attachment in the aid of execution, execution or otherwise) in respect of any
Transaction Document. The Guarantor hereby irrevocably designates and appoints
for the benefit of the Remarketing Agent and the Holders from time to time of
the Securities for the term of this Agreement ACE USA, Inc, Six Concourse
Parkway, Suite 2500, Atlanta, GA, 30328, facsimile: (770) 393-0888, Attention:
23
Richard T. Gieryn, Jr as its agent to receive on its behalf service of all
process (with a copy of all such service of process to be delivered to ACE
Limited, The ACE Building, 30 Woodbourne Avenue, Hamilton, HM08, Bermuda,
facsimile: (441) 296-7799, Attention: Peter N. Mear) brought against it with
respect to any such proceeding in any such court in The City of New York, such
service being hereby acknowledged by the Guarantor to be effective and binding
service on it in every respect whether or not the Guarantor, as the case may be,
shall then be doing or shall have at any time done business in New York. Such
appointment shall be irrevocable so long as any of the obligations of the
Guarantor hereunder remain outstanding, or until the appointment of a successor
by the Guarantor, as the case may be, and such successor's acceptance of such
appointment. Upon such acceptance, the Guarantor shall notify the Remarketing
Agent of the name and address of such successor. The Guarantor further agrees
for the benefit of the Remarketing Agent and the Holders from time to time of
the Securities to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment of said agent in full force and effect so long as
any of the obligations of the Guarantor hereunder shall be outstanding. The
Remarketing Agent shall not be obligated and shall have no responsibility with
respect to any failure by the Guarantor to take any such action. Nothing herein
shall affect the right to serve process in any other manner permitted by any law
or limit the right of the Remarketing Agent or any Holder to institute
proceedings against the Guarantor in the courts of any other jurisdiction or
jurisdictions.
Section 27. Judgment Currency. All payments by the Company or the
Guarantor hereunder shall be made in lawful currency of the United States of
America ("Dollars"). The Guarantor agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in Dollars into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Remarketing Agent could purchase in The City of New York
the requisite amount of Dollars with the Judgment Currency on the Business Day
preceding the day on which a final unappealable judgment is given and (b) its
obligations under this Agreement to make payments in Dollars (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with clause (a)), in any currency other
than the Dollars, except to the extent that such tender or recovery shall result
in the actual receipt, by the payee, of the full amount of the Dollars expressed
to be payable in
24
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in Dollars the amount,
if any, by which such actual receipt shall fall short of the full amount of
Dollars so expressed to be payable and (iii) shall not be affected by judgment
being obtained for any other sum due under this Agreement.
Section 28. Net Payments. All payments hereunder by the Guarantor
("Guarantee Payments") shall be made by the Guarantor without withholding or
deduction at source for, or on account of, any present or future taxes, fees,
duties, assessments or governmental charges of whatever nature imposed or levied
by or on behalf of the Cayman Islands or Bermuda (each, a taxing jurisdiction@)
or any political subdivision or taxing authority thereof or therein, unless such
taxes, fees, duties, assessments or governmental charges are required to be
withheld or deducted by (i) the laws (or any regulations or ruling promulgated
thereunder) of a taxing jurisdiction or any political subdivision or taxing
authority thereof or therein or (ii) an official position regarding the
application, administration, interpretation or enforcement of any such laws,
regulations or rulings (including, without limitation, a holding by a court of
competent jurisdiction or by a taxing authority in a taxing jurisdiction or any
political subdivision thereof). If a withholding or deduction at source is
required, the Guarantor shall, subject to certain limitations and exceptions set
forth below, pay to the Holder of any Security (or, if applicable, Subordinated
Note) such Additional Amounts (as defined below) as may be necessary so that
every net Guarantee Payment, after such withholding or deduction, shall not be
less than the amount due and payable pursuant to this Agreement; provided,
--------
however, that the Guarantor shall not be required to make payment of such
- -------
Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental change of whatever
nature which would not have been imposed but for the fact that such Holder: (A)
was a resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the relevant taxing
jurisdiction or any political subdivision thereof or otherwise had some
connection with the relevant taxing jurisdiction other than by reason of the
mere ownership of such Security or receipt of a Guarantee Payment; (B) presented
such Security for payment in the relevant taxing jurisdiction or any political
subdivision thereof, unless such Security could not have been presented for
payment elsewhere; or (C) presented such Security more than 30 days after the
date on which the payment in respect of such Security first became due and
payable or provided for, whichever is later, except to
25
the extent that the Holder would have been entitled to such Additional Amounts
if it had presented such Security for payment on any day within such period of
30 days;
(2) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder or the beneficial owner of such
Security to comply with any reasonable request by the Guarantor addressed to the
Holder within 90 days of such request (A) to provide information concerning the
nationality, residence or identity of the Holder or such beneficial owner or (B)
to make any declaration or other similar claim or satisfy any information or
reporting requirement, which, in the case of (A) or (B), is required or imposed
by statute, treaty, regulation or administrative practice of the relevant taxing
jurisdiction or any political subdivision thereof as a precondition to exemption
from all or part of such tax, assessment or other governmental charge; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any Guarantee Payment to
any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of such Security to the extent such payment would be required by the laws
of the relevant taxing jurisdiction (or any political subdivision or relevant
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or partner or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner who would not have been
entitled to such Additional Amounts had it been the holder of the Security.
If any withholding for or on account of any tax, fee, duty, assessment or
other governmental charge described in this Section 31 shall be required in
connection with a Guarantee Payment, the Guarantor shall specify, in a
certificate to the Holder, by taxing jurisdiction the amount, if any, required
to be withheld on such payments to such Holder, and the Guarantor agrees to pay
to such Holder the additional amounts required by this Section 31. The Guarantor
covenants to indemnify each Holder for, and to hold it harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on its part arising out of or in connection with actions taken or omitted by it
in reliance on any such certificate furnished pursuant to this Section 31.
26
"Additional Amounts" means any additional amounts which are required
hereby, under circumstances specified herein, to be paid by the Guarantor in
respect of certain taxes, assessments or other governmental charges imposed on
Holders and which are owing to such Holders.
27
IN WITNESS WHEREOF, each of the Company, the Trust, the Subordinated Notes
Issuer and the Remarketing Agent has caused this Remarketing Agreement to be
executed in its name and on its behalf by one of its duly authorized officers as
of the date first above written.
ACE LIMITED
By:___________________________________________
Name: Peter N. Mear
Title: Secretary
ACE RHINOS TRUST
By:___________________________________________
Name: Peter N. Mear
Title: Administrative Trustee
ACE INA HOLDINGS INC.
By:___________________________________________
Name: Peter N. Mear
Title: Secretary
28
Accepted and Agreed as of
the date first above written:
BANC OF AMERICA SECURITIES LLC,
not individually, but solely as Remarketing Agent
By:__________________________________
Name:
Title:
29