Exhibit
1.1
XL
Capital Ltd
Senior
Notes
Underwriting
Agreement
May
2,
2007
Goldman,
Sachs & Co.,
as
Representative of the several
Underwriters
named in Schedule I hereto (the “
Representative
”)
c/o
Goldman, Sachs & Co.
85
Broad
Street
New
York,
New York 10004
Ladies
and Gentlemen:
XL
Capital Ltd, a Cayman Islands exempted limited company (the “
Company
”),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the “
Underwriters
”) an
aggregate of $325 million principal amount of 6.25% Senior Notes due 2027
(the “
Securities
”).
The
Senior Notes are being issued under an Indenture, dated June 2, 2004 (the
“
Base Indenture
”), between the Company and The Bank of New York, as
trustee (the “
Trustee
”), as supplemented by the First Supplemental
Indenture, dated August 23, 2004 (the “
First Supplemental Indenture
”),
the Second Supplemental Indenture, dated November 12, 2004 (the “
Second
Supplemental Indenture
”), the Third Supplemental Indenture, dated December
9, 2005 (the “
Third Supplemental Indenture
”), and the Fourth Supplemental
Indenture, dated May 7, 2007 (the “
Fourth Supplemental Indenture
” and,
together with the Base Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture, and the Third Supplemental Indenture, the
“
Indenture
”).
1. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) An
“automatic shelf registration statement” as defined under Rule 405 under the
U.S. Securities Act of 1933, as amended (the “
Act
”), on Form S-3 (File
No. 333-130036) in respect of the Securities has been filed with the U.S.
Securities and Exchange Commission (the “
Commission
”) not earlier than
three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission, and no notice of objection of the Commission
to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the
base prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to the
date of this Agreement, is hereinafter called the “
Basic Prospectus
”; any
preliminary prospectus (including any preliminary prospectus supplement)
relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act is hereinafter called a “
Preliminary Prospectus
”; the
various parts of such registration statement, including all exhibits thereto
but
excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B
to be part of such registration statement, each as amended at the time such
part
of the registration statement became effective, are hereinafter collectively
called the “
Registration Statement
”; the Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined in Section
1(c) hereof), is hereinafter called the “
Pricing
Prospectus
”; the
form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a)
hereof is hereinafter called the “
Prospectus
”; any reference herein to
the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the
Prospectus shall be deemed to refer to and include the documents incorporated
by
reference therein pursuant to Item 12 of Form
S-3
under
the Act, as of the date of the respective prospectus; any reference to any
amendment or supplement to the Basic Prospectus, any Preliminary Prospectus
or
the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating
to
the Securities filed with the Commission pursuant to Rule 424(b) under the
Act
and any documents filed under the U.S. Securities Exchange Act of 1934, as
amended (the “
Exchange Act
”), and incorporated by reference therein, in
each case after the date of the Basic Prospectus, such Preliminary Prospectus,
or the Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated
by
reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Securities is
hereinafter called an “
Issuer Free Writing Prospectus
”);
(b) No
order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of 1939,
as
amended (the “
Trust Indenture Act
”) and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation
and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use therein;
(c) For
the purposes of this Agreement, the “
Applicable Time
” is 3:30 p.m.
(Eastern time) on the date of this Agreement; the Pricing Prospectus as
supplemented by the final term sheet in the form attached as Schedule III hereto
and to be prepared and filed pursuant to Section 5(a) hereof, taken together
(collectively, the “
Pricing Disclosure Package
”) as of the Applicable
Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
each
Issuer Free Writing Prospectus listed on Schedule II hereto does not conflict
with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus,
as
supplemented by and taken together with the Pricing Disclosure Package as of
the
Applicable Time, did not include any untrue statement of a material fact or
omit
to state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the Company
by
an Underwriter through the Representative expressly for use
therein;
(d) The
documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as
the
case may be, conformed in all material respects to the requirements of the
Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective
or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and
the rules and regulations of the Commission thereunder and will not contain
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading;
and no such documents were filed with the Commission since the Commission’s
close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth
on
Schedule II hereto.
(e) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform,
in
all material respects to the requirements of the Act and the Trust Indenture
Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements
in
the
Registration Statement not misleading and the statements in the Prospectus
in
the light of the circumstances under which they were made not misleading;
provided, however, that this representation and warranty shall not apply to
any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representative
expressly for use therein;
(f) Neither
the Company nor any of its Significant Subsidiaries (as defined below) has
sustained since the date of the latest audited financial statements included
or
incorporated by reference in the Pricing Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus, which loss or interference would have a Material Adverse Effect
(as
defined below), or would reasonably be expected to have a prospective Material
Adverse Effect; and, since the respective dates as of which information is
given
in the Registration Statement and the Pricing Prospectus, there has not been
any
change in the capital stock (other than changes resulting from the exercise
of
stock options or the conversions of warrants or capital stock which were
outstanding as of such date, or from the exercise of options granted after
such
date in the ordinary course of business or from repurchases of capital stock)
or
long-term debt of the Company or any of its Significant Subsidiaries or any
material adverse change, or any development that would reasonably be expected
to
involve a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders’ equity or results of
operations of the Company and its Significant Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Pricing
Prospectus;
(g) The
Company has been duly incorporated and is validly existing as an exempted
limited company in good standing under the laws of the Cayman Islands, with
full
corporate power and authority to own its properties and conduct its business
as
described in the Pricing Prospectus and to enter into and perform its
obligations under this Agreement and the Securities and to consummate the
transactions to be performed by it pursuant to this Agreement and the Securities
and has been duly qualified as a foreign company for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it
owns or leases properties or conduct any business so as to require such
qualification, except where such failure to be so qualified in any such
jurisdiction or to have any such power or authority would not have a material
adverse effect on the current or future condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole or on the transactions contemplated by this
Agreement (a “
Material Adverse Effect
”); and each Significant Subsidiary
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
(h) The
Company had, on March 31, 2007, an authorized capitalization as set forth in
the
Pricing Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and conform to the description thereof contained in the Pricing
Disclosure Package and the Prospectus;
(i) The
Securities have been duly and validly authorized and when authenticated by
the
Trustee in accordance with the provisions of the Indenture and delivered to
and
paid for by the Underwriters, the Securities will have been duly and validly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company, enforceable against the Company
in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws
of
general applicability relating to or affecting creditors’ rights and remedies
and to general equity principles, and will be entitled to the benefits provided
by the Indenture; the Indenture has been duly authorized by the Company, and
at
the Time of Delivery, will be duly executed and delivered by the Company and
will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors’ rights and remedies and to general equity principles; the Indenture
has been duly qualified under the Trust Indenture Act; and the Securities and
the Indenture will conform to the description thereof contained in the Pricing
Disclosure Package and the Prospectus with respect to the Securities; the Base
Indenture is substantially in the form filed as an exhibit to the Registration
Statement;
(j) This
Agreement has been duly authorized, executed and delivered by the
Company;
(k) The
issue and sale of the Securities, the execution and delivery of this Agreement
and the Indenture and the compliance by the Company with all of the provisions
of this Agreement, the Indenture and the Securities and the consummation by
the
Company of the transactions contemplated herein and therein and in the Pricing
Prospectus and the Prospectus will not conflict with or result in a breach
or
violation of any of the terms or provisions of or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Significant Subsidiaries is a
party or by which the Company or any of its Significant Subsidiaries is bound
or
to which any of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the Articles of Association or the Memorandum of Association
(or
similar organizational documents) of the Company or any of its Significant
Subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body (a “
Governmental Agency
”) having jurisdiction
over the Company or any of its Significant Subsidiaries or any of its respective
properties except in each case (other than with respect to such Articles of
Association or Memorandum of Association (or similar organizational documents))
for such conflicts, violations, breaches or defaults which would not result
in a
Material Adverse Effect;
(1) No
consent, approval, authorization, order, filing, registration or qualification
of or with any Governmental Agency (a “
Governmental Authorization
”) is
required for the issue and sale by the Company of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement,
except such as have been, or will have been prior to the first Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution
of
the Securities by the Underwriters;
(m) All
of the issued share capital of each Significant Subsidiary of the Company which
is a corporation has been duly and validly authorized and issued, is fully
paid
and non-assessable and (except for (i) an approximately 37% interest in Security
Capital Assurance Ltd owned by third parties, (ii) a 15% ownership interest
in
XL Financial Assurance Ltd. owned by a third party and (iii) directors’
qualifying shares) is owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims (for purposes of this
Agreement, “
Subsidiary
” means, as applied to any person, any corporation,
limited or general partnership, trust, association or other business entity
of
which an aggregate of greater than 50% of the outstanding Voting Shares of
such
person is, at any time, directly or indirectly, owned by such person and/or
one
or more subsidiaries of such person and “
Significant Subsidiary
” shall
have the meaning of “significant subsidiary” as set forth in Regulation S-X
under the Act; for purposes of the definition of “Subsidiary,” “
Voting
Shares
” means, with respect to any corporation, the capital stock having the
general voting power under ordinary circumstances to elect at least a majority
of the board of directors (irrespective of whether or not at the time stock
of
any other class or classes shall have or might have voting power by reason
of
the happening of any contingency));
(n) Prior
to the date hereof, neither the Company nor, to the Company’s knowledge, any of
its affiliates has taken any action which is designed to or which has
constituted or which might have bean expected to cause or result in
stabilization or manipulation of the price of any security of the Company in
connection with the offering of the Securities in violation of the Exchange
Act;
(o) Other
than as set forth or incorporated by reference in the Pricing Prospectus prior
to the date hereof, or as encountered in the ordinary course of business in
the
Company’s claims activities, there are no legal or governmental actions, suits
or proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property of the Company or any of its
Significant Subsidiaries is the subject, which would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect on the
operations of the Company and its Significant Subsidiaries; and, to the best
of
the Company’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(p) The
financial statements of the Company and its consolidated Subsidiaries
incorporated by reference in the Pricing Prospectus and the Prospectus present
fairly the financial position of the Company and its consolidated Subsidiaries
as of the dates shown and their results of operations and cash flows for the
periods shown, and except as otherwise disclosed in the Pricing Prospectus,
such
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis;
(q) Each
of the Company and its Significant Subsidiaries possess adequate certificates,
authorities, licenses or permits issued by appropriate governmental agencies
or
bodies necessary to conduct the business now operated by them and have not
received any written notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(r) Neither
the Company nor any of its Significant Subsidiaries is in violation of its
Articles of Association or Memorandum of Association (or similar organizational
documents) or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound,
except for such defaults which would not result in a Material Adverse
Effect;
(s) The
statements set forth in the Pricing Prospectus and the Prospectus under the
captions “Description of the Senior Notes” insofar as they purport to constitute
a summary of the terms of the Securities and the other transaction documents
described therein, and the statements set forth under the caption “Certain Tax
Considerations” in the Pricing Prospectus and the Prospectus, insofar as they
purport to describe the provisions of the laws referred to therein, are
accurate, complete and fair in all material respects;
(t) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an
“investment company,” as such term is defined in the U.S. Investment Company Act
of 1940, as amended (the “
Investment Company Act
”);
(u) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company and its
Subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, are an independent registered
public accounting firm as required by the Act and the rules and regulations
of
the Commission thereunder;
(v) No
stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes are payable by or on behalf of the
Underwriters to the Cayman Islands or any political subdivision or taxing
authority thereof or therein in connection with (A) the issuance, sale and
delivery by the Company to or for the respective accounts of the Underwriters
of
the Securities or (B) the sale or delivery outside the Cayman Islands by the
Underwriters of the Securities to the initial purchasers thereof, other than
as
described in the opinion of Appleby delivered pursuant to Section 8(d) of this
Agreement;
(w) (A)
(i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act
or
form of prospectus), and (iii) at the time the Company or any person acting
on
its behalf (within the meaning, for this clause only, of Rule 163(c) under
the
Act) made any offer relating to the Securities in reliance on the exemption
of
Rule 163 under the Act, the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act)
of
the Securities, the Company was not an “ineligible issuer” as defined in Rule
405 under
-
the
Act;
(x) The
Company and its Subsidiaries maintain a system of “internal control over
financial reporting” (as such term is defined in Rule 13a-15(f) under the
Exchange Act). The Company’s and its Subsidiaries’ internal control
over financial reporting is effective and the Company and its Subsidiaries
are
not aware of any material weaknesses in its internal control over financial
reporting; and
(y) The
Company and its Subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure
controls and procedures are effective.
2. Subject
to the terms and conditions herein set forth, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at a purchase price per Security
of $993.34, the aggregate principal amount of Securities set forth opposite
the
name of such Underwriter in Schedule I hereto.
3. Upon
the authorization by the Representative of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms
and
conditions set forth in the Prospectus.
4. The
Securities to be purchased by each Underwriter hereunder will be represented
by
one or more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Company with The Depository Trust Company
(“
DTC
”) or its designated custodian. The Company will deliver
the Securities to the Representative, for the account of each Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account specified
by the Company to the Representative at least twenty-four hours in advance,
by
causing DTC to credit the Securities to the account of the Representative at
DTC. The Company will, upon request by the Representative, cause the
certificates representing the Securities to be made available to the
Representative for checking at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian (the “
Designated Office
”). The time and
date of such delivery and payment shall be, with respect to the Securities,
9:30
a.m., New York City time, on May 7, 2007 or such other time and date as the
Representative and the Company may agree upon in writing. Such time
and date for delivery of the Securities is herein called the “
Time of
Delivery
.”
The
documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the
Securities and any additional documents requested by the Underwriters pursuant
to Section 8(n) hereof, will be delivered at the offices of Simpson Thacher
& Bartlett LLP, 425 Lexington Avenue, New York, New York 10017 (the
“
Closing Location
”), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be
held at the Closing Location at 3:00 p.m., New York City time, on the New York
Business Day next preceding the Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence
will
be available for review by the parties hereto.
5. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by the Representative and to file
such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s
close of business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any supplement
to
the Registration Statement, the Basic Prospectus or the Prospectus prior to
the
Time of Delivery which shall be disapproved by the Representative promptly
after
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any amendment or supplement to the Prospectus
has
been filed and to furnish the Representative with copies thereof; to prepare
a
final term sheet containing a description of the Securities, in the form
attached hereto as Schedule III and approved by the Representative, and to
file
such term sheet pursuant to Rule 433(d) under the Act within the time required
by such Rule; to file promptly all other material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Securities; to advise the Representative, promptly
after
it receives notice thereof, of the issuance by the Commission prior to the
completion of the distribution of the Securities contemplated by this Agreement
(the date of which shall be confirmed to the Company by the Representative)
of
any stop order or of any order preventing or suspending the use of any
preliminary prospectus or other prospectus in respect of the Securities, of
any
notice of objection of the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act, of the suspension of the qualification of the Securities for offering
or
sale in any jurisdiction, of the initiation or threatening of any proceeding
for
any such purpose, or of any request by the Commission prior to the completion
of
the distribution of the Securities contemplated by this Agreement for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order
or
of any order preventing or suspending the use of any preliminary prospectus
or
other prospectus or suspending any such qualification, to promptly use its
best
efforts to obtain the withdrawal of such order; and in the event of the issuance
of any such notice of objection, promptly to amend the Registration Statement
in
such manner as may be required to permit offers and sales of the
Securities;
(b) If
required by Rule 430B (h) under the Act in connection with the offering of
the
Securities contemplated by this Agreement, to prepare a form of prospectus
in a
form approved by the Representative and
to
file
such form of prospectus pursuant to Rule 424(b) under the Act not later than
may
be required by Rule 424(b) under the Act; and to make no further amendment
or
supplement to such form of prospectus which shall be disapproved by the
Representative promptly after reasonable notice thereof;
(c) Promptly
from time to time to take such action as the Representative may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as the Representative may reasonably request and
to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file
a
general consent to service of process in any jurisdiction;
(d) If
by the third anniversary (the “
Renewal Deadline
”) of the initial
effective date of the Registration Statement, any of the Securities remain
unsold by the Underwriters, the Company will file, if it has not already done
so
and is eligible to do so, a new automatic shelf registration statement relating
to the Securities, in a form satisfactory to the Representative. If
at the Renewal Deadline the Company is no longer eligible to file an automatic
shelf registration statement and the distribution of the Securities contemplated
by this Agreement has not yet been completed, the Company will, if it has not
already done so, file a new shelf registration statement relating to the
Securities, in a form satisfactory to the Representative and will use its best
efforts to cause such registration statement to be declared effective within
180
days after the Renewal Deadline. The Company will take all other
action necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the expired registration statement
relating to the Securities. References herein to the Registration
Statement shall include such new automatic shelf registration statement or
such
new shelf registration statement, as the case may be.
(e) Prior
to 3:00 p.m., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such
quantities as the Representative may reasonably request, and, if the delivery
of
a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale
of
the Securities and if at such time any event shall have occurred as a result
of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or,
if
for any other reason it shall be necessary during such same period to amend
or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act,
the
Exchange Act or the Trust Indenture Act to notify the Representative and upon
the Representative’s request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
written and electronic copies as the Representative may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance; and
in
case any Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales
of
any of the Securities at any time nine months or more after the time of issue
of
the Prospectus, upon the Representative’s request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as the Representative may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act; the
Representative will inform the Company when the Underwriters’ obligation to
deliver a prospectus has expired.
(f) To
make generally available to its security holders as soon as practicable, but
in
any event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its Subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(g) For
a period of 30 days after the date of the initial public offering of the
Securities, the Company will not (i) offer, pledge, announce the intention
to
sell, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of, directly or indirectly, any debt securities
of the Company that mature more than one year
after
such Time of Delivery and are substantially similar to the Securities, without
the prior written consent of the Representative, other than the Securities
to be
sold hereunder;
(h) To
pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Act without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) under the
Act;
(i) To
take all reasonable actions necessary, including engaging advisers to act on
behalf of the Company, to enable Moody’s Investors Service, Standard &
Poor’s Ratings Service, Fitch, Inc. and A.M. Best Company to provide at the Time
of Delivery their respective credit ratings of the Securities;
(j) To
use the net proceeds received by it from the sale of the Securities pursuant
to
this Agreement in the manner specified in the Pricing Prospectus and Prospectus
under the caption “Use of Proceeds”; and
(k) Upon
request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating
the on-line offering of the Securities (the “
License
”);
provided
,
however
,
that the License shall be
used solely for the purpose described above, is granted without any fee and
may
not be assigned or transferred.
6. The
Company represents and agrees that, other than the final term sheet in the
form
attached as Schedule III hereto and filed pursuant to Section 5(a) hereof,
without the prior consent of the Representative, it has not made and will not
make any offer relating to the Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act; (ii) each Underwriter
represents and agrees that, other than one or more term sheets relating to
the
Securities containing customary information and conveyed to the purchasers
of
the Securities, without the prior consent of the Company and the Representative
(as to both form and content), it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus;
and
(iii) any such free writing prospectus, the use and content of which have been
consented to by the Company and the Representative (including the final term
sheet in the form attached as Schedule III hereto and filed pursuant to Section
5(a) hereof) is listed on Schedule II hereto;
(a) The
Company has complied and will comply with the requirements of Rule 433 under
the
Act applicable to any Issuer Free Writing Prospectus, including timely filing
with the Commission or retention where required and legending; and
(b) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to
the
Representative and, if requested by the Representative, will prepare and furnish
without charge to each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict statement or omission; provided,
however, that this covenant shall not apply to any statements or omissions
in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the
Representative expressly for use therein.
7. Subject
to the last sentence of this Section 7, the Company covenants and agrees with
the several Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Securities under the
Act
and the issuance and sale of the Securities and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus
and the Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the
cost
of printing or producing any Agreement among Underwriters, this Agreement,
the
Indenture, any Blue Sky and Legal Investment Memoranda and any closing documents
(including any compilations thereof in connection with the offering, purchase,
sale and delivery of the Securities); (iii) all expenses in connection with
the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any Blue Sky and Legal Investment
Memoranda; (iv) any filing fees incident to, and the fees and disbursements
of
counsel for the
Underwriters
in connection with, any required reviews by the National Association of
Securities Dealers, Inc, of the terms of the sale of the Securities; (v) the
cost of preparing the Securities; (vi) the fees and expenses of the Trustee
and
any agent of the Trustee and the fees and disbursements of counsel for any
such
persons in connection with the Indenture or the Securities; (vii) all expenses
and taxes arising as a result of the issuance, sale and delivery of the
Securities and of the sale and delivery outside of the Cayman Islands of the
Securities by the Underwriters to the initial purchasers thereof in the manner
contemplated under this Agreement, including, in any such case, any Cayman
Islands income, capital gains, withholding, transfer or other tax asserted
against an Underwriter by reason of the purchase and sale of the Securities
pursuant to this Agreement; (viii) any fees charged by securities rating
services for rating the Securities and (ix) all other costs and expenses
incident to the performance of the Company’s obligations hereunder which are not
otherwise specifically provided for in this Section 7. It is
understood, however, that, except as provided in this Section 7, and Sections
9,
12 and 24 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers
they
may make.
8. The
obligations of the Underwriters hereunder, as to the Securities to be delivered
at the Time of Delivery, shall be subject, in their discretion, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing
by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; the final term sheet in the form attached as Schedule III hereto and
filed as contemplated by Section 5(a) hereof, and any other material required
to
be filed by the Company pursuant to Rule 433(d) under the Act shall have been
filed with the Commission within the applicable time periods prescribed for
such
filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission and no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to
Rule
401(g)(2) under the Act shall have been received; no stop order suspending
or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representative’s reasonable satisfaction;
(b) Simpson
Thacher & Bartlett LLP, counsel for the Underwriters, shall have furnished
to the Representative their written opinion or opinions and letter, dated the
Time of Delivery, in form and substance reasonably satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such
matters;
(c) Cahill
Gordon & Reindel LLP, United States counsel for the Company, shall have
furnished to the Representative their written opinion or opinions and letter,
dated the Time of Delivery, in form and substance reasonably satisfactory to
the
Representative, in the form attached hereto in Annex I-1 and Annex I-2,
respectively;
(d) Appleby,
Cayman Islands counsel for the Company, shall have furnished to you their
written opinion or opinions, dated the Time of Delivery, in form and substance
reasonably satisfactory to the Representative, in the form attached hereto
in
Annex II;
(e) Kirstin
Romann Gould, Executive Vice President and General Counsel-Corporate Affairs
to
the Company, shall have furnished to the Representative his written opinion
or
opinions, dated the Time of Delivery, in form and substance reasonably
satisfactory to the Representative, in the form attached hereto in Annex
III;
(f) On
the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:30 am., New York City time, on the effective date of any post-effective
amendment to the Registration Statement filed subsequent to the date of this
Agreement but prior to the Time of Delivery, PricewaterhouseCoopers LLP, the
independent registered public accounting firm of the Company, who have certified
the financial statements of the Company and its Subsidiaries and have audited
the Company’s internal control over financial reporting and management’s
assessment thereof included or incorporated by reference in the Registration
Statement, shall have fur-
nished
to
the Representative a “comfort” letter or letters, dated the respective dates of
delivery thereof, in form and substance reasonably satisfactory to the
Representative;
(g) Neither
the Company nor any of its Significant Subsidiaries shall have sustained since
the date of the latest audited financial statements included or incorporated
by
reference in the Pricing Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or
decree, otherwise than as set forth or contemplated in the Pricing Prospectus,
and (ii) since the respective dates as of which information is given in the
Pricing Prospectus, there shall not have been any change in the capital stock
(other than changes resulting from the exercise of options or the conversion
of
warrants or capital stock which were outstanding as of such date, or from the
exercise of options granted after such date in the ordinary course of business
or from repurchases of capital stock) or long-term debt of the Company or any
of
its Significant Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of the Company and its
Significant Subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the Representative’s judgment so material
and adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in this Agreement and the Prospectus;
(h) At
the Time of Delivery, the Securities shall be rated at least “Baa2” by Moody’s
Investors Service, “BBB” by Standard & Poor’s Ratings Service, “A-” by
Fitch, Inc. and “bbb” by A.M. Best Company and each such rating agency shall
have delivered to the Representative or to the Company a letter dated as of
the
Time of Delivery, or other evidence reasonably satisfactory to the
Representative, confirming that the Securities have such ratings; and on or
after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Securities or any of the Company’s debt securities or preference
shares or the Company’s or any Significant Subsidiary’s financial strength or
claims paying ability by any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company’s debt
securities or preference shares or the Company’s or its Significant
Subsidiaries’ financial strength or claims paying ability;
(i) On
or after the date of the Applicable Time there shall not have occurred any
of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company’s securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities in New
York, the Cayman Islands or Bermuda declared by the relevant authority or a
material disruption in commercial banking or securities settlement or clearance
services in the United States or any other relevant jurisdiction; (iv) the
outbreak or escalation of hostilities involving the United States, the Cayman
Islands or Bermuda or the declaration by the United States, the Cayman Islands
or Bermuda of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the Representative’s judgment is so material
and adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at the Time of
Delivery on the terms and in the manner contemplated in the Prospectus; (v)
a
change or development involving a prospective change in the Cayman Islands
or
Bermuda taxation affecting the Company, the Securities or the transfer thereof
or the imposition of exchange controls by the United States, Bermuda or the
Cayman Islands; or (vi) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States
or
currency exchange rates or controls in the United States, the Cayman Islands,
Bermuda or elsewhere, if the effect of any such event specified in this clause
(vi) in the Representative’s judgment is so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Securities being delivered at the Time of Delivery on the terms and
in
the manner contemplated in the Prospectus;
(j) The
Company shall have complied with the provisions of Section 5(e) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement;
(k) The
Company shall have furnished or caused to be furnished to you at the Time of
Delivery certificates of officers of the Company satisfactory to the
Representative as to the accuracy of the representations and warranties of
the
Company herein at and as of the Time of Delivery, as to the performance by
the
Company of all of its obligations hereunder to be performed at or prior to
the
Time of Delivery, as to the matters set forth in
subsections
(a), (g) and (h) of this Section 8 and as to such other matters as the
Representative may reasonably request; and
(1) Prior
to the Time of Delivery, the Company shall have furnished to the Representative
such further information, certificates and documents as you may reasonably
request.
9. The
Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter
may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or many amendment or
supplement thereto, any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Act, or arise out of or are based upon the omission or alleged omission to
state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and will reimburse each Underwriter for
any
legal expenses of one counsel (in addition to any local counsel) engaged
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon
and
in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use therein.
(a) Each
Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus or any such amendment or supplement thereto, or
any
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative expressly for use therein; and will reimburse the Company for
any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred, including the reasonable fees and expenses of one counsel (in addition
to any applicable local counsel).
(b) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise
than
under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of
the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with
the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not
be
liable to such indemnified party under such subsection for any legal expenses
of
other counsel or any other expenses, in each case subsequently incurred by
such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation (except as set forth below). Notwithstanding
the indemnifying party’s election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to
employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel
if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest; (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party, and the indemnified
party
shall have reasonably concluded that there
may
be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party;
(iii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action, or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual
or
potential party
to such action or claim) unless such settlement,
compromise or judgment (1) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (2) does not
include a statement as to or an admission of fault, culpability or a failure
to
act, by or on behalf of any indemnified party.
(c) If
the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
(b)
above in respect of any losses, claims, damages or liabilities (or actions
in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the
indemnified party failed to give the notice required under subsection (d) above,
then each indemnifying party shall contribute to such amount paid or payable
by
such indemnified party in such proportion as is appropriate to reflect not
only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and
commissions received by the Underwriters, in each case as set forth in the
table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters were treated as
one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed to include
any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any
damages which such Underwriter has otherwise been required to pay by reason
of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from
any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(d) The
obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if
any, who controls the Company within the meaning of the Act.
10. (a) If
any Underwriter shall default in its obligation to purchase the Securities
which
it has agreed to purchase hereunder at the Time of Delivery, the Representative
may in the its discretion arrange for the Representative or another party or
other parties satisfactory to the Company to purchase such Securities on the
terms contained herein. If within thirty-six hours after such default
by any Underwriter the Representative do not arrange for the purchase of
such
Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representative to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that the Representative have so arranged for the purchase of such Securities,
or
the Company notifies the Representative that it has so arranged for the purchase
of such Securities, the Representative or the Company shall have the right
to
postpone the Time of Delivery for a period of not more than seven days, in
order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and
the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the Representative’s opinion
may thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any person substituted under this Section 10 with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If,
after giving effect to any arrangements for the purchase of the Securities
of a
defaulting Underwriter or Underwriters by the Representative and the Company
as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one eleventh of the
aggregate principal amount of all the Securities to be purchased at the Time
of
Delivery, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of shares which such Underwriter
agreed to purchase hereunder at the Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based
on
the principal amount of Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters
for
which such arrangements have not been made; but nothing herein shall relieve
a
defaulting Underwriter from liability for its default.
(c) If,
after giving effect to any arrangements for the purchase of the Securities
of a
defaulting Underwriter or Underwriters by the Representative and the Company
as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased exceeds one eleventh of the aggregate
principal amount of all the Securities to be purchased at the Time of Delivery,
or if the Company shall not exercise the right described in subsection (b)
above
to require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements
in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter
from
liability for its default.
11. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
12. If
this Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not then be under any liability to any Underwriter except as provided
in
Sections 7, 9 and 24 hereof; but, if for any other reason, any Securities are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through the Representative for all out of pocket
expenses approved in writing by you, including reasonable fees and disbursements
of counsel, reasonably incurred by the Underwriters in making preparations
for
the purchase, sale and delivery of the Securities not so delivered, but the
Company shall then be under no further liability to any Underwriter except
as
provided in Sections 7, 9 and 24 hereof.
13. In
all dealings hereunder, the Representative shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representative.
All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the Representative in care of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004, Attention: General Counsel, Fax
No.: 212-902-3000; and if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set
forth
in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 9(e) hereof
shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representative upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt
thereof.
14. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
15. The
Company irrevocably (i) agrees that any legal suit, action or proceeding against
the Company brought by any Underwriter or by any person who controls any
Underwriter arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in the federal district court for the
Southern District of New York and the New York County Court, (ii) waives, to
the
fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such proceeding and (iii) submits
to the exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed CT Corporation System, New
York, New York, as its authorized agent (the “
Authorized Agent
”) upon
whom process may be served in any such action arising out of or based on this
Agreement or the transactions contemplated hereby which may be instituted in
the
federal district court for the Southern District of New York and the New York
County Court by any Underwriter or by any person who controls any Underwriter,
expressly consents to the jurisdiction of any such court in respect of any
such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be
irrevocable. The Company represents and warrants that the Authorized
Agent has agreed to act as such agent for service of process and agrees to
take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the Company shall be deemed, in every
respect, effective service of process upon the Company.
16. Time
shall be of the essence in this Agreement. As used herein, the term
“business day” shall mean any day when the Commission’s office in Washington,
D.C. is open for business. “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law
or
executive order to close.
17. The
Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other, (ii)
in
connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not as the agent or fiduciary
of
the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement and (iv) the Company has consulted its own legal and financial
advisors to the extent it deemed appropriate. The Company agrees that
it will not claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
18. For
the avoidance of doubt and anything in this Agreement to the contrary
notwithstanding, all references in this Agreement to the Pricing Disclosure
Package as of the Applicable Time shall be deemed to include the final term
sheet relating to the Securities in the form attached as Schedule III hereto
and
to be filed with the Commission on March 13, 2007.
19. This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriters, or any of them, with respect
to
the subject matter hereof.
20. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
21. The
Company and each of the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
22. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
23. This
Company is authorized, subject to applicable law, to disclose any and all
aspects of this potential transaction that are necessary to support any U.S.
federal income tax benefits expected to be claimed with :respect to such
transaction, without the Underwriters imposing any limitation of any
kind.
24. In
respect of any judgment or order given or made for any amount due hereunder
that
is expressed and paid in a currency (the “
judgment currency
”) other than
United States dollars, the Company will indemnify each Underwriter against
any
loss incurred by such Underwriter as a result of any variation between (i)
the
rate of exchange at which the United States dollar amount is converted into
the
judgment currency for the purpose of such judgment or order and (ii) the rate
of
exchange at which an Underwriter is able to purchase United States dollars
with
the amount of judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order aforesaid. The term
“rate of exchange” shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States
dollars.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
If
the
foregoing is in accordance with your understanding, please sign and return
to us
one for the Company and each of you plus one for each counsel counterparts
hereof, and upon the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement
among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof
|
Very
truly yours,
XL
CAPITAL LTD
|
|
By:
/s/
Brian M. O’Hara
Name: Brian
M. O’Hara
Title: President
& Chief Executive Officer
|
Accepted
as of the date hereof:
GOLDMAN,
SACHS & CO.
By:
/s/ Goldman, Sachs &
Co.
Name:
Title:
SCHEDULE
I
|
|
|
Principal
Amount of
Securities
to be
Purchased
|
|
|
Goldman,
Sachs & Co.
|
|
$
|
260,000,000.00
|
|
|
Banc
of America Securities LLC
|
|
|
5,416,666.67
|
|
|
BNP
Paribas Securities Corp.
|
|
|
5,416,666.67
|
|
|
BNY
Capital Markets, Inc.
|
|
|
5,416,666.67
|
|
|
Calyon
Securities (USA) Inc.
|
|
|
5,416,666.67
|
|
|
HSBC
Securities (USA) Inc.
|
|
|
5,416,666.67
|
|
|
HVB
Capital Markets, Inc.
|
|
|
5,416,666.67
|
|
|
ING
Financial Markets LLC
|
|
|
5,416,666.67
|
|
|
KeyBanc
Capital Markets Inc.
|
|
|
5,416,666.67
|
|
|
Lloyds
TSB Bank plc
|
|
|
5,416,666.66
|
|
|
Mitsubishi
UFJ Securities International plc
|
|
|
5,416,666.66
|
|
|
Mizuho
Securities USA Inc.
|
|
|
5,416,666.66
|
|
|
The
Williams Capital Group, L.P.
|
|
|
5,416,666.66
|
|
|
TOTAL
|
|
$
|
325,000,000.00
|
|
SCHEDULE
II
(a) Issuer
Free Writing Prospectuses not included in the Pricing Disclosure
Package
(b) Additional
Documents Incorporated by Reference
SCHEDULE
III
XL
Capital Ltd.
Summary
of Terms
$325,000,000
6.25% due May 15, 2027
|
Issuer:
|
XL
Capital, Ltd.
|
|
Ratings:
|
A3/A-(Stable/Stable)
|
|
Note
Type:
|
Senior
Notes
|
|
Principal
Amount:
|
$325,000,000
|
|
Trade
Date:
|
May
2, 2007
|
|
Settlement
Date (T+3 days):
|
May
7, 2007
|
|
Maturity
Date:
|
May
15, 2027
|
|
Coupon:
|
6.25%
|
|
Coupon
Frequency:
|
Semi-Annual
|
|
Coupon
Payment Dates:
|
May
15 and November 15
|
|
First
Pay Date:
|
November
15, 2007
|
|
Day
Count:
|
30/360
|
|
Pricing
Benchmark:
|
4.500%
due 2/2036
|
|
Benchmark
Spot:
|
94-30
|
|
Benchmark
Yield:
|
4.827%
|
|
Reoffer
Spread:
|
+144
bps
|
|
Reoffer
Yield:
|
6.267%
|
|
Reoffer
Price:
|
99.805%
|
|
Gross
Proceeds:
|
$324,366,250
|
|
Underwriter’s
Discount:
|
0.471%
|
|
Net
Proceeds to Issuer:
|
$322,835,500
|
|
Optional
Redemption:
|
Make-whole
redemption at any time at a discount rate of Treasury plus 25 basis
points
|
|
Tax
Event Redemption:
|
Redeemable
at any time upon the occurrence of certain tax events at 100% of
the
principal amount
|
|
Minimum
Denomination:
|
$1,000
x $1,000
|
|
Sole
Bookrunner:
|
Goldman,
Sachs & Co.
|
|
Co-managers:
|
Banc
of America Securities LLC, BNP Paribas Securities Corp., BNY Capital
Markets, Inc., Calyon Securities (USA) Inc., HSBC Securities (USA)
Inc.,
HVB Capital Markets, Inc., ING Financial Markets LLC, KeyBanc Capital
Markets Inc., Lloyds TSB Bank plc, Mitsubishi UFJ Securities International
plc, Mizuho Securities USA Inc. and The Williams Capital Group,
L.P.
|
|
CUSIP
Number:
|
98372P
AK4
|
|
ISIN
Number:
|
US98372PAK49
|
Investing
in the Notes involves a number of risks. See “Risk Factors” beginning
on page S-4 of the accompanying prospectus supplement.
XL
Capital, Ltd. has filed a registration statement (including a prospectus) and
a
prospectus supplement with the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in that
registration statement, the prospectus supplement and other documents XL
Capital, Ltd. has filed with the SEC for more complete information about the
issuer and this offering. You should rely on the prospectus,
prospectus supplement and any relevant free writing prospectus or pricing
supplement for complete details. You may get these documents for free
by visiting the
SEC
Web
site at
www.sec.gov.
Alternatively, copies of the
prospectus and the prospectus supplement may be obtained
from
Goldman, Sachs & Co. by calling
1-866-471-2526.
ANNEX
I-1
CAHILL
GORDON & REINDEL LLP FORM OF OPINION
1. Insofar
as the laws of the State of New York are applicable thereto, each of the
Underwriting Agreement and the Indenture has been duly executed and delivered
by
the Company and constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms except
that (a) the enforceability thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to or affecting creditors’ rights or
remedies generally and (ii) general principles of equity and to the discretion
of the court before which any proceedings therefor may be brought (regardless
of
whether enforcement is sought in a proceeding at law or in equity) and (b)
rights to indemnity and contribution may be limited by applicable law and public
policy; the Indenture has been duly qualified under the Trust Indenture Act
of
1939, as amended, and the applicable rules and regulations of the Commission
thereunder (the “
Trust Indenture Act
”); and the execution of each of the
First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, and the Fourth Supplemental Indenture is permitted
by
the Base Indenture.
2. Insofar
as the laws of the State of New York are applicable thereto, the Senior Notes
have been duly executed and issued by the Company and, when authenticated in
accordance with the provisions of the Base Indenture, the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture,
and the Fourth Supplemental Indenture and when delivered to and paid for by
you
in accordance with the terms of the Underwriting Agreement, will constitute
valid and legally binding obligations of the Company, entitled to the benefits
of the Base Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture, the Third Supplemental Indenture, and the Fourth Supplemental
Indenture and enforceable against the Company in accordance with their
respective terms, except that the enforceability thereof may be subject to
(i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to or affecting
creditor’s rights or remedies generally and (ii) general principles of equity
and to the discretion of the court before which any proceedings therefore may
be
brought (regardless of whether enforcement is sought in a proceeding at law
or
in equity).
3. To
such counsel’s knowledge; the issuance and sale of the Senior Notes, the
execution, delivery and performance by the Company of the Underwriting
Agreement, the Indenture and the Senior Notes and the compliance by the Company
with the provisions of the Underwriting Agreement, the Indenture and the Senior
Notes, and the consummation by the Company of the transactions contemplated
therein to be performed by it will not conflict with or result in a breach
or
violation of, or constitute a default under any of the agreements listed on
Schedule A
hereto.
4. To
such counsel’s knowledge, the issuance and sale of the Senior Notes, the
execution, delivery and performance by the Company of the Underwriting
Agreement, the Indenture and the Senior Notes and the compliance by the Company
with the provisions of the Underwriting Agreement, the Indenture and the Senior
Notes, and the consummation by the Company of the transactions contemplated
therein to be performed by it will not (A) require any consent, approval,
authorization or other order of any United States federal or State of New York
court or governmental body or agency (except such as may be required under
the
state securities or Blue Sky laws) or (B) violate or conflict with any
applicable law, rule or administrative regulation of the United States or the
State of New York, or any order or administrative or court decree of any United
States or State of New York governmental body or agency or court of which we
have knowledge (except we have not been requested to and do not express any
opinion as to any state securities or Blue Sky laws).
5. To
such counsel’s knowledge, other than as set forth or incorporated by reference
in the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its Significant Subsidiaries is a party or of which
any property of the Company or any of its Significant Subsidiaries is the
subject that are required to be disclosed in such Pricing Disclosure Package
or
the Prospectus and is not so disclosed.
6. The
Company is not and will not become, as a result of the offering and sale of
the
Senior Notes and the use of the proceeds thereof, an “investment company,” as
such term is defined in the Investment Company Act of 1940, as
amended.
7. The
Registration Statement has become effective under the Act and the Prospectus
Supplement was filed on May 2, 2007 pursuant to Rule 424(b)(2) of the rules
and
regulations of the Commission under the Act and, to our
knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued or proceeding for that purpose has been instituted or threatened
by
the Commission.
8. Except
as to (i) financial statements, financial schedules and other financial and
statistical data included or incorporated by reference therein and (ii) the
documents incorporated by reference in the Registration Statement or the
Prospectus, as to which we have not been requested to and do not express any
opinion (except as set forth in paragraph 9), the Registration Statement and
the
Prospectus comply as to form in all material respects with the applicable
requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder.
9. Each
of the Company’s Annual Report on Form 10-K for the year ended December 31,
2005, filed on March 1, 2007; Annual Proxy Statement on Schedule 14A, filed
on
March 16, 2007; and the Company’s Current Reports on Form 8-K filed on February
1, 2007, February 22, 2007, February 26, 2007, March 12, 2007, March 15, 2007
and April 26, 2007, incorporated by reference in the Pricing Prospectus and
the
Prospectus (except for the financial statements, financial schedules and other
financial and statistical data included or incorporated by reference therein
as
to which we express no opinion), as of the date it was filed with the
Commission, appears on its face to have been appropriately responsive in all
material respects to the requirements of the Exchange Act.
10. The
statements set forth in the Pricing Disclosure Package and the Prospectus under
the caption “Description of the Senior Notes” insofar as they purport, in the
context of the purpose stated in the Pricing Disclosure Package and the
Prospectus for such section, to constitute a summary of the terms of the
Securities are accurate in all material respects and fairly summarize the terms
of the Securities in all material respects. “Certain Tax
Considerations—United States” insofar as they purport to describe the provisions
of the federal income tax laws of the United States of America referred to
therein fairly describe such provisions in all material respects.
ANNEX
I-2
CAHILL
GORDON & REINDEL LLP FORM OF NEGATIVE ASSURANCE LETTER
We
have
participated in conferences with officers and other representatives of the
Company, representatives of Cayman Islands counsel to the Company,
representatives of the independent registered public accounting firm for the
Company, representatives of counsel for the Underwriters and representatives
of
the Underwriters at which the contents of the Registration Statement, the
Prospectus and the Pricing Prospectus, as supplemented by the final term sheet
dated May 2, 2007 in the form attached to the Underwriting Agreement and filed
with the Commission pursuant to Rule 433 (the “
Pricing Disclosure
Package
”) and related matters were discussed. Although we have
made certain inquiries and investigations in connection with the preparation
of
the Registration Statement, the Prospectus and the Pricing Disclosure Package,
the limitations inherent in the role of outside counsel to the Company are
such
that we cannot and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in such documents, except
as provided in paragraphs 10 and 11 of our opinion to you of even date
herewith. Subject to the foregoing, we advise you that no facts have
come to our attention that lead us to believe that (i) the Registration
Statement, as of each date it became effective, contained an untrue statement
of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
Prospectus, as of its date or as of the date hereof, contained or contains
an
untrue statement of a material fact or omitted or omits to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iii) the Pricing
Disclosure Package, taken together, as of the Applicable Time, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we have not been requested to and do not express any comment with respect
to the financial statements or other financial data that is included in or
omitted from the Registration Statement, the Prospectus or the Pricing
Disclosure Package).
ANNEX
II
APPLEBY
FORM OF OPINION
Based
upon and subject to the foregoing and subject to the reservations set out below
and to any matters not disclosed to such counsel, such counsel is of the opinion
that:
1. The
Company is an exempted company duly incorporated with limited liability and
existing under the laws of the Cayman Islands. The Company possesses
the capacity to sue and be sued in its own name and is in good standing under
the laws of the Cayman Islands.
2. The
issuance of the Notes is not subject to any pre-emptive or other similar rights
under Cayman Islands law or the Memorandum and Articles of Association of the
Company or, based and in reliance solely on the Officer’s Certificate, any
material contract to which the Company is a party.
3. The
Company has all requisite corporate power and authority to carry on its business
as contemplated in the Prospectus Supplement and the Base Prospectus, to issue
the Notes, to enter into, execute, deliver and perform its obligations under
the
Subject Agreements and to take all action as may be necessary to complete the
transactions contemplated thereby.
4. The
execution, delivery and performance by the Company of the Subject Agreements
and
the transactions contemplated thereby, including the issuance of the Notes
in
accordance with the Subject Agreements, have been duly authorised by all
necessary corporate action on the part of the Company.
5. The
Subject Agreements have been duly executed by the Company and constitute legal,
valid and binding obligations of the Company, enforceable against the Company
in
accordance with their terms.
6. No
consent, licence or authorisation of, filing or registration with, or other
act
by or in respect of, any governmental authority, public body or court of the
Cayman Islands is required to be obtained by the Company in connection with
the
entry into, execution, delivery or performance by the Company of the Subject
Agreements or to ensure the legality, validity, admissibility into evidence
or
enforceability as to the Company, of the Subject Agreements or the consummation
of the transactions contemplated thereby, including the issue of the Notes
in
accordance with the terms of the Subject Agreements.
7. The
execution, delivery and performance by the Company of the Subject Agreements
and
the transactions contemplated thereby, including the issuance of the Notes,
do
not and will not violate, conflict with or constitute a default under (a) any
requirement of any law, statute, decree, rule or regulation of the Cayman
Islands, (b) the Constitutional Documents or (c) based and in reliance solely
on
the Officer’s Certificate, any material contract to which the Company is a
party.
8. The
transactions contemplated by the Subject Agreements are not subject to any
currency deposit or reserve requirements in the Cayman Islands. There
is no restriction or requirement of the Cayman Islands binding on the Company
which limits the availability or transfer of foreign exchange (i.e. monies
denominated in currencies other than Cayman Islands dollars) for the purposes
of
the performance by the Company of its obligations under the Subject
Agreements.
9. The
choice of the laws of the State of New York as the proper law to govern the
Subject Agreements is a valid choice of law under Cayman Islands law and such
choice of law would be recognised, upheld and applied by the courts of the
Cayman Islands as the proper law of the Subject Agreements in proceedings
brought before them in relation to the Subject Agreements provided that (a)
the
point is specifically pleaded;
(b)
such
choice of law is valid and binding under the Laws of New York; and (c)
recognition would not be contrary to public policy as that term is understood
under Cayman Islands law.
10. The
submission by the Company to the jurisdiction of the courts of the State of
New
York pursuant to the Subject
Agreements is not contrary to Cayman
Islands law and would be recognised by the courts of the Cayman Islands as
a
legal, valid and binding submission to the jurisdiction of the courts of New
York, if such submission is accepted by such courts and is legal, valid and
binding under the laws of the State of New York.
11. A
final and conclusive judgment
in personam
of a competent foreign court
against the Company based upon the Subject Agreements under which a definite
sum
of money is payable (not being a sum payable in respect of taxes or other
charges of a like nature or in respect of a fine or other similar penalty)
may
be the subject of enforcement proceedings in the Grand Court of the Cayman
Islands under the common law doctrine of obligation by action on the debt
evidenced by the judgment of such competent foreign court. A final
opinion as to the availability of this remedy should be sought when the facts
surrounding the foreign court’s judgment are known, but, on general principles,
we would expect such proceedings to be successful provided that:
(a) the
court which gave the judgment was competent to hear the action in accordance
with private international law principles as applied in the Cayman Islands;
and
(b) the
judgment is not contrary to public policy in Cayman Islands, has not been
obtained by fraud or in proceedings contrary to natural justice and is not
based
on an error in Cayman Islands law.
12. Neither
the Company nor any of its assets or property enjoys, under Cayman Islands
law,
immunity on the grounds of sovereignty from any legal or other proceedings
whatsoever or from enforcement, execution or attachment in respect of its
obligations under the Subject Agreements or the Notes.
13. Based
solely upon the Litigation Search and the Officer’s Certificate:
(a) no
litigation, arbitration or administrative or other proceeding of or before
the
Grand Court of the Cayman Islands is pending against the Company;
and
(b) no
resolution of members has been passed to wind up or appoint a liquidator or
receiver of the Company and no petition or application to wind up the Company
or
to reorganise its affairs pursuant to a scheme of arrangement and no application
for the appointment of a receiver has been filed with the Grand Court of the
Cayman Islands.
14. There
are, subject as provided in paragraph (r) under “Reservations” below in this
opinion, no taxes, stamp or documentary taxes, duties or similar charges under
the laws of the Cayman Islands now due, or which could in the future become
due
to any governmental authority of or in the Cayman Islands, in connection with
the execution, delivery, performance or enforcement of the Subject Agreements
or
the transactions contemplated thereby, including the issuance of the Notes,
or
in connection with the admissibility in evidence thereof and the Company is
not
required by any Cayman Islands law or regulation to make any deductions or
withholdings in the Cayman Islands from any payment it may make
thereunder.
15. The
statements made in the Prospectus Supplement under the caption “Certain Tax
Considerations – Cayman Islands” and in the Annual Report on Form 10-K for the
year ended 31 December 2006 under the caption “Risk Factors – Risks Related to
Taxation – We may become subject 1o taxes in the Cayman Islands after June 2,
2018, which may have a material adverse effect or our results of operations” are
accurate in all material respects.
16. It
is not necessary under the laws of the Cayman Islands that any of the
Underwriters be authorised or qualified to carry
on business in
the Cayman Islands for their entry into, execution, delivery, performance,
or
enforcement of the Subject Agreements. None of the Underwriters will
be deemed to be resident, domiciled, carrying on business or subject to taxation
in the Cayman Islands by reason only of their entry into, execution, delivery,
performance or enforcement of the Subject Agreements. The foregoing
opinion is subject to any statutory or regulatory obligation imposed under
the
laws of the Cayman Islands if a Cayman Islands branch or company carrying on
business in or from the Cayman Islands enters into the Subject Agreements as
one
of the parties thereto.
ANNEX
III
XL
CAPITAL LTD FORM OF OPINION
1. The
Company is not in violation of any organizational document, corporate minute
or
resolution or any instrument or agreement of which I have knowledge after due
inquiry, in each case binding on it or affecting its property in any manner
which could have a Material Adverse Effect.
2. There
is no litigation or governmental proceeding by or against the Company or any
Significant Subsidiary of the Company or concerning any property of the Company
or any of its Significant Subsidiaries, pending or threatened, that (A) could
reasonably be expected (in light of reserves and total shareholder’s equity of
the Company after taking into account the Company’s business and activities) to
have a Material Adverse Effect if adversely determined or (B) is required to
be
disclosed in the Registration Statement, Pricing Disclosure Package or
Prospectus and is not so disclosed, other than in the case of clause (A), as
routinely encountered in claims activity or as disclosed in the Pricing
Disclosure Package and the Prospectus or the documents incorporated therein
by
reference.
3. The
execution, delivery and performance of the Underwriting Agreement, the
Indenture, the First Supplemental Indenture, the Second Supplemental Indenture,
the Third Supplemental Indenture and the Fourth Supplemental Indenture and
the
transactions contemplated thereby and the issuance and sale of the Senior Notes
by the Company will not (A) violate or conflict with the terms, conditions
or
provisions of the Memorandum of Association and Articles of Association or
other
organizational documents of the Company or any applicable law, rule or
administrative regulation of the United States or the State of New York, or
any
order or administrative decree of any United States or State of New York
governmental body or agency or court of which I have knowledge or (B) constitute
a violation of, or a default under, any covenant, restriction or provision
with
respect to financial ratios or tests to which the Company or any Significant
Subsidiary of the Company is subject or any aspect of the financial condition
or
results of operations of the Company or any of its subsidiaries.
4. There
are no contracts, agreements or understandings between the Company and any
person granting such person the right (other than rights which have been waived
or satisfied) to require the Company to include any securities of the Company
owned by such person in the Prospectus or Registration Statement.
EXHIBIT
4.1
TO
THE
BANK OF NEW YORK,
AS
TRUSTEE
FOURTH
SUPPLEMENTAL INDENTURE
DATED
AS OF MAY 7, 2007
SENIOR
DEBT SECURITIES
SUPPLEMENT
TO INDENTURE DATED AS OF JUNE 2, 2004
FOURTH
SUPPLEMENTAL INDENTURE, dated as of May 7, 2007 (the “Fourth Supplemental
Indenture”), by and between XL CAPITAL LTD, a Cayman Islands exempted limited
company (the “Company”), having its principal office at XL House, One Bermudiana
Road, Hamilton HM11, Bermuda, and THE BANK OF NEW YORK, a New York banking
corporation, having a Corporate Trust Office at 101 Barclay Street, Floor 8
West, New York, New York 10286, as trustee (the “TRUSTEE”), under the
Indenture.
WHEREAS,
the Company and the Trustee have as of June 2, 2004 entered into an Indenture
(the “Base indenture”) providing for the issuance by the Company from time to
time of its senior debt securities;
WHEREAS,
the Company and the Trustee have executed that certain First Supplemental
Indenture, dated as of August 23, 2004, and that certain Second
Supplemental Indenture, dated as of November 12, 2004, pursuant to which
the Company issued a series of its 5.25% Senior Notes due 2014 (“2014
Securities”) and a series of its 6.375% Senior Notes due 2024 (“2024
Securities”) under the Base Indenture and provided for certain additional
provisions of such 2014 Securities and 2024 Securities;
WHEREAS,
the Company and the Trustee have executed that certain Third Supplemental
Indenture, dated as of December 9, 2005, pursuant to which the Company
issued a series of its 5.25% Senior Notes due 2011 (the “Securities”) under the
Base Indenture;
WHEREAS,
pursuant to Section 9.01(11) of the Base Indenture, the Company and the
Trustee may enter into supplemental indentures to establish the form or terms
of
securities of any series as permitted by Sections 2.01 and 3.01 of the Base
Indenture;
WHEREAS,
the Company desires to issue another series of senior debt securities under
the
Base Indenture, and has duly authorized the creation and issuance of such series
of senior debt securities and the execution and delivery of this Fourth
Supplemental Indenture to modify the Base Indenture and provide certain
additional provisions as hereinafter described (the Base Indenture, as amended
and supplemented by the First Supplemental Indenture, the Second Supplemental
Indenture, the Third Supplemental Indenture and this Fourth Supplemental
Indenture, is hereinafter referred to as the “Indenture”);
WHEREAS,
the Company and the Trustee deem it advisable to enter into this Fourth
Supplemental Indenture for the purposes of establishing the terms of such series
of senior debt securities and providing for the rights, obligations and duties
of the Trustee with respect to such series of senior debt
securities;
WHEREAS,
the execution and delivery of this Fourth Supplemental Indenture has been
authorized by a resolution of the Board of Directors of the Company or a duly
authorized committee thereof;
WHEREAS,
concurrently with the execution hereof, the Company has delivered an Officers’
Certificate and has caused its counsel to deliver to the Trustee an Opinion
of
Counsel; and
WHEREAS,
all conditions and requirements of the Base Indenture necessary to make this
Fourth Supplemental Indenture a valid, binding and legal instrument in
accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW,
THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For
and
in consideration of the mutual premises and agreements herein contained, the
Company and the Trustee covenant and agree, for the equal and proportionate
benefit of all Holders of the 2027 Securities (as defined below), as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1
Definition
of Terms
.
Unless
otherwise provided herein or unless the context otherwise requires:
(a) a
term defined in the Base Indenture has the same meaning when used in this Fourth
Supplemental Indenture;
(b) a
term defined anywhere in this Fourth Supplemental Indenture has the same meaning
throughout;
(c) the
singular includes the plural and vice versa;
(d) headings
are for convenience of reference only and do not affect interpretation;
and
(e) the
following terms have the meanings given to them in this Section
1.1(e):
“
Additional
Amounts
” has the meaning set forth in Section 2.13(b).
“
Comparable
Treasury Issue
” means the United States Treasury security selected as
having a maturity comparable to the remaining term of the 2027 Securities to
be
redeemed that would be used, at the time of selection and under customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the 2027 Securities.
“
Comparable
Treasury Price
” means, with respect to any Redemption Date, the average of
the Reference Treasury Dealer Quotations for the Redemption Date, after
excluding the highest and lowest Reference Treasury Dealer Quotations, or if
the
Trustee obtains fewer that four Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations.
“
Depositary
”
has the meaning set forth in Section 2.7.
“
Designated
Subsidiary
” means any present or future consolidated subsidiary of the
Company that is a regulated insurance company, the assets of which constitute
at
least 20% of the Company’s consolidated assets.
“
Global
Note
” means a Global Security representing the 2027
Securities.
“
Issue
Date
” means May 7, 2007.
“
Reference
Treasury Dealer Quotations
” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee,
of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by the Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day before the Redemption Date.
“
Reference
Treasury Dealers
” means Goldman, Sachs & Co., with respect to the
Senior Notes, and its respective successors and any other primary Treasury
dealer the Company selects. If any of the foregoing ceases to be a
primary U.S. government securities dealer in New York City, the Company must
substitute another primary Treasury dealer.
“
Relevant
Date
” means, in respect of any payment, the date on which such payment
first becomes due and payable, but if the full amount of the moneys payable
has
not been received by the Trustee on or prior to such due date, it means the
first date on which, the full amount of such moneys having been so received
and
being available for payment to Holders, notice to that effect shall have been
duly given to the Holders of the 2027 Securities.
“
Tax
Event
” means if the Company determines that, as a result of (1) any change
in, or amendment to, the law or treaties (or any regulations or rulings
promulgated thereunder), including the enactment of any legislation or the
publication of any regulatory determination, of the Cayman Islands, Bermuda
or
any other jurisdiction from or through which the Company makes a payment on
the
2027 Securities or in which the Company generally becomes subject to taxation;
or (2) any change in, or amendment to, a position regarding the application,
administration or interpretation of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction)
(each of the foregoing in clauses (1) and (2), a “Change In Tax Law”), the
Company is, or on the next Interest Payment Date in respect of the 2027
Securities would be, required to pay Additional Amounts with respect to the
2027
Securities as described under Section 2.13(b), and such obligation cannot be
avoided by taking commercially reasonable measures available to the
Company. The Change in Tax Law must become effective on or after May
7, 2007. In the case of a successor entity, the Change in Tax Law
must become effective after the date that such successor entity first becomes
an
obligor on the 2027 Securities (unless the Change in Tax Law had
already occurred prior to such date, but on or after May 7, 2007, with respect
to the original entity).
“
Treasury
Rate
” means, with respect to any Redemption Date, the rate per year equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for
such Redemption Date. The Treasury Rate shall be calculated on the
third Business Day preceding the Redemption Date.
ARTICLE
II
CREATION
OF THE 2027 SECURITIES
Section
2.1
Designation
of Series
.
Pursuant
to the terms hereof and Sections 2.01 and 3.01 of the Base Indenture, the
Company hereby creates a series of its senior debt securities designated as
the
6.25% Senior Notes due 2027 (the “2027 Securities”), which 2027 Securities shall
be deemed “Securities” for all purposes under the Indenture.
Section
2.2
Form
of 2027 Securities
.
The
definitive form of the 2027 Securities shall be substantially in the form set
forth in Exhibit A attached hereto, which is incorporated herein and made part
hereof (and the 2027 Securities shall be referred to as the “Notes” in Exhibit
A).
The
Final
Maturity of the 2027 Securities shall be May 15, 2027.
Section
2.3
Interest
and Interest Rate Reset
.
(a) The
2027 Securities will bear interest from the Issue Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
as
the case may be, to maturity or early redemption, as the case may be, at the
rate of 6.25% per annum payable semi-annually on November 15 and May 15 of
each
year, commencing on November 15, 2007, to the persons in whose names the 2027
Securities were registered at the close of business on the preceding November
1
and May 1, respectively.
(b) Interest
on the 2027 Securities will be computed on the basis of a 360-day year comprised
of twelve 30-day months. The amount of interest payable for any
period shorter than a full semi-annual period for which interest is computed
will be computed on the basis of the actual number of days elapsed in the
180-day period.
Section
2.4
Limit
on Amount of 2027 Securities
.
(a) The
2027 Securities initially will be limited in aggregate principal amount to
$325,000,000 and may, upon execution of this Fourth Supplemental Indenture,
be
executed by the Company and delivered to the Trustee for authentication, and
the
Trustee shall thereupon authenticate and deliver said 2027 Securities in
accordance with a Company Order.
(b) The
Company may issue from time to time, without giving notice to or seeking the
consent of the Holders of the 2027 Securities, additional notes having the
same
terms as the 2027 Securities (except for the initial public offering price,
first Interest Payment Date and the Issue Date). Any such additional
notes, together with the 2027 Securities, will constitute a single series of
Securities under the Indenture.
Section
2.5
Nature
of 2027 Securities/Minimum Denomination
.
(a) The
2027 Securities shall constitute senior, unsecured and unsubordinated
obligations of the Company and shall rank pari passu with all other unsecured
and unsubordinated indebtedness of the Company from time to time
outstanding.
(b) The
2027 Securities shall be issuable only in registered form and without coupons
in
denominations of $1,000 and any integral multiples thereof.
Section
2.6
No
Sinking Fund
.
The
2027
Securities do not have the benefit of any mandatory redemption or sinking fund
obligation and are not redeemable at the option of the Holders.
Section
2.7
Issuance
of 2027 Securities and Payment
.
(a) The
2027 Securities, on original issuance, shall be issued in the form of one fully
registered Global Note registered in the name of The Depository Trust Company,
as Depositary (the “Depositary”), or its nominee, and deposited with the
Trustee, as custodian for the Depositary, for credit by the Depositary to the
respective accounts of beneficial owners of the 2027 Securities represented
thereby (or such other accounts as they may direct).
(b) The
payment of principal of and the interest on the 2027 Securities will be payable
at the Corporate Trust Office or, at the option of the Company, by check mailed
to each Holder at its address set forth in the Security Register; provided
however, that if a Holder has given wire transfer instructions to the Company
and the Paying Agent and Security Registrar at least ten Business Days prior
to
the applicable payment date, payment of principal of and the interest on the
2027 Securities will be payable by wire transfer of immediately available funds
to the account specified in such instructions.
Section
2.8
2027
Securities Not Convertible or Exchangeable
.
The
2027
Securities will not be convertible or exchangeable for other securities or
property.
Section
2.9
Redemption
.
Pursuant
to Section 3.01(6) and Section 11.01 of the Base Indenture, so long as any
of
the 2027 Securities are Outstanding, the following provisions shall be
applicable to the 2027 Securities:
(a) The
2027 Securities will be redeemable, in whole at any time or in part from time
to
time, at the Company’s option, at a redemption price equal to accrued and unpaid
interest on the principal amount of the 2027 Securities being redeemed to the
Redemption Date plus the greater of: (A) 100% of the principal
amount of the 2027 Securities to be redeemed, and (B) the sum of the
present values of the remaining scheduled payments of principal and interest
on
the 2027 Securities to be redeemed (not including any portion of such payments
of interest accrued to the Redemption Date) discounted to the Redemption Date
on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus 25 basis points.
(b) If
a Tax Event occurs and is continuing, the Company may, at its option, redeem
the
2027 Securities in whole, but not in part, at any time at a redemption price
equal to 100% of the principal amount of the 2027 Securities, plus accrued
and
unpaid interest, if any, to the Redemption Date and Additional Amounts, if
any,
then due or that will become due on the date fixed for redemption as a result
of
such redemption. Installments of interest on 2027 Securities which
are due and payable on or prior to a Redemption Date will be payable to Holders
of the 2027 Securities registered as such at the close of business on the
relevant record dates.
(c) (i)
Notwithstanding Section 11.04 of the Base Indenture, any notice of redemption
pursuant to Section 2.9(a) or (b) shall (i) be sufficient if instead of setting
forth a specific price with respect to the Redemption Price, it sets forth
the
manner of calculation thereof and (ii) be mailed to the Holders not less than
30
nor more than 60 days prior to the Redemption Date.
(ii) Notwithstanding
the foregoing, in case of a Tax Event redemption, no such notice of redemption
will be given (a) earlier than 90 days prior to the earliest date on which
the
payor would be obliged to make such payment or withholding if a payment in
respect of 2027 Securities by it were then due and (b) unless at the time such
notice is given, such obligation to pay such Additional Amounts remains in
effect. Prior to the publication or mailing of any notice of
redemption of 2027 Securities pursuant to the foregoing, the Company will
deliver to the Paying Agent (a) an Officers’ Certificate stating that the
Company is entitled to effect such redemption and setting forth a statement
of
facts showing that any factual conditions precedent to the Company’s right so to
redeem have been satisfied and (b) a legal opinion of an outside nationally
recognized tax counsel to the effect that the circumstances referred to in
this
clause (ii) and the circumstances described in the definition of “Tax Event”
exist.
Section
2.10
Guarantees
.
The
2027
Securities will not be guaranteed by any third party.
Section
2.11
Place
of Payment
.
The
Paying Agent for the 2027 Securities shall initially be the Trustee, and the
Place of Payment for the 2027 Securities shall initially be the Corporate Trust
Office, which as of the date hereof for such purpose is located at 101 Barclay
Street, Floor 8 West, New York, New York 10286. The Company may from
time to time designate one or more additional offices or agencies where 2027
Securities may be presented or surrendered for payment.
Section
2.12
Events
of Default
.
The
following shall constitute additional Events of Default pursuant to Section
5.01
of the Base Indenture with respect to the 2027 Securities with the same effect
as if expressly set forth in such Section 5.01:
(a) default
by the Company under any instrument or instruments under which there is or
may
be secured or evidenced any of the Company’s indebtedness (other than the 2027
Securities) having an outstanding principal amount of $50,000,000 (or its
equivalent in any other currency or currencies) or more, individually or in
the
aggregate, that has caused the holders thereof to declare such indebtedness
to
be due and payable prior to its stated maturity, unless such declaration has
been rescinded within 30 days;
(b) default
by the Company in the payment when due of the principal of or premium, if any,
on any bond, debenture, note or other evidence of the Company’s indebtedness, in
each case for money borrowed, or in the payment of principal or premium, if
any,
under any mortgage, indenture, agreement or instrument under which there may
be
issued or by which there may be secured or evidenced any indebtedness of the
Company for money borrowed, which default for payment of principal or premium,
if any, is in an aggregate principal amount exceeding $50,000,000 (or its
equivalent in any other currency or currencies), if such default shall continue
unremedied or unwaived for more than 30 days after the expiration of any grace
period or extension of the time for payment applicable thereto;
(c) default
in the payment of any Additional Amounts payable with respect to interest on
any
2027 Securities, when such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; and
(d) default
in the payment of any Additional Amounts payable with respect to any principal
of or premium, if any, on any 2027 Securities, when such Additional Amounts
become due and payable either at maturity, upon any redemption, by declaration
of acceleration or otherwise.
In
addition, with respect to the 2027 Securities, the reference to “60 days” in
Section 5.01(1) of the Base Indenture shall be amended to be “30 days” with
respect to the 2027 Securities.
The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any Event of Default or any event which, after notice
or lapse of time or both, would constitute an Event of Default.
Section
2.13
Covenants
.
The
2027
Securities shall be entitled to the benefit of each of the covenants in Article
Ten of the Base Indenture and the following additional covenants (each of which
shall be deemed to be a provision of the Indenture and, when referred to as
a
provision of the Indenture, shall be identified by reference to the Section
number that is set forth immediately preceding the covenant):
(a) SECTION
10.09. Limitation On Liens On Stock Of Designated
Subsidiaries. The Company covenants that, so long as any 2027
Securities are outstanding, the Company will not, nor will the Company permit
any Designated Subsidiary to, create, assume, incur, guarantee or otherwise
permit to exist any indebtedness evidenced by notes, debentures, bonds or
similar instruments that is secured by any mortgage, pledge, lien, security
interest or other encumbrance upon any shares of Capital Stock of any Designated
Subsidiary (whether such shares of stock are now owned or hereafter acquired)
without effectively providing concurrently that the 2027 Securities will be
secured equally and ratably with such indebtedness for at least the time period
such other indebtedness is so secured.
(b) SECTION
10.10. Additional Amounts. All amounts payable (whether in
respect of principal, interest or otherwise) in respect of the 2027 Securities
will be made free and clear of and without withholding or deduction for or
on
account of any present or future taxes, duties, levies, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of
the
Cayman Islands or Bermuda or any political subdivision thereof or any authority
or agency therein or thereof having power to tax, unless the withholding or
deduction of such taxes, duties, levies, assessments or governmental charges
is
required by law. In that event, the Company will pay, or cause to be
paid, such additional amounts as may be necessary in order that the net amounts
receivable by a Holder after such withholding or deduction (including any
withholding or deduction on such payment of additional amounts) shall equal
the
respective amounts that would have been receivable by such Holder had no such
withholding or deduction been required (“Additional Amounts”), except that no
such Additional Amounts shall be payable in relation to any payment (including
a
payment made in connection with a redemption) in respect of any of the 2027
Securities (a) to, or to a third party on behalf of, a Person who would be
able
to avoid such withholding or deduction by complying with such Person’s statutory
requirements or by making a declaration of non-residence or similar claim for
exemption but, in either case, fails to do so, or is liable for such taxes,
duties, levies, assessments or governmental charges in respect of such 2027
Security by reason of his having some connection with (including, without
limitation, being a citizen of, being incorporated or engaged in a trade or
business in, or having a residence or principal place of business or other
presence in) the Cayman Islands or Bermuda, as the case may be, other than
(i)
the mere holding of such 2027 Security; (ii) the receipt of principal, interest
or other amount in respect of such 2027 Security; or (iii) the mere enforcement
of rights with respect to such 2027 Security; (b) presented for payment more
than 30 days after the Relevant Date, except to the extent that the relevant
Holder would have been entitled to such Additional Amounts on presenting the
same for payment on or before the expiration of such period of 30 days; (c)
to a
fiduciary, a partnership or person who is not the beneficial owner of a 2027
Security, if and to the extent that, as a result of an applicable tax treaty,
no
Additional Amounts would have been payable had the beneficiary, partner or
beneficial owner owned the 2027 Security directly; (d) on account of any
inheritance, gift, estate, personal property, stamp, sales or transfer or
similar taxes, duties, levies, assessments or similar governmental charges;
or
(e) on account of any taxes, duties, levies, assessments or governmental charges
that are payable otherwise than by withholding from payments in respect of
such
2027 Security.
In
the
event that payments in respect of the 2027 Securities are subject to withholding
or deduction for or on account of any taxes, the Company will (i) make any
required withholding or deduction and (ii) remit the full amount deducted or
withheld to the relevant taxing jurisdiction in accordance with applicable
law. The Company will use commercially reasonable efforts to obtain
certified copies of tax receipts evidencing the payment of any taxes so deducted
or withheld from each relevant taxing jurisdiction imposing such taxes and
will
use commercially reasonable efforts to provide or make available such certified
copies (or other documentary evidence establishing the payment of such taxes)
to
each Holder.
If
the
Company becomes subject generally at any time to any taxing jurisdiction other
than or in addition to the Cayman Islands or Bermuda, or makes a payment on
the
2027 Securities from any jurisdiction other than or in addition to the Cayman
Islands or Bermuda, references in this Section 10.10 to the Cayman Islands
and
Bermuda shall be read and construed as references to such other jurisdiction(s)
and/or to the Cayman Islands and Bermuda.
Any
reference in the Indenture to principal, premium or interest in respect of
the
2027 Securities, any redemption amount and any other amounts in the nature
of
principal shall be deemed also to refer to any Additional Amounts that may
be
payable under the Indenture, and the express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such
express mention is not made.
Except
as
otherwise provided in or pursuant to the Indenture, if the 2027 Securities
require the payment of Additional Amounts, at least 30 days prior to each date
on which any payments under or with respect to the 2027 Securities are due
and
payable (unless such obligation to pay Additional Amounts arises shortly before
or after the 30th day prior to such date, in which case it shall be promptly
thereafter) the Company or its designee shall furnish to the Trustee, the
Registrar and the Paying Agent an Officers’ Certificate stating the fact that
Additional Amounts will be payable, the amounts so payable, and any other
information to enable the Trustee or such Paying Agent to pay such Additional
Amounts to Holders on the payment date.
The
Company will pay any present or future stamp, court or documentary taxes or
any
other excise or property taxes, charges or similar levies that arise in any
jurisdiction from the execution, delivery or registration of any 2027 Securities
or any other document or instrument referred to therein (other than a transfer
of the 2027 Securities), or the receipt of any payments with respect to the
2027
Securities, excluding any such taxes, charges or similar levies imposed by
any
jurisdiction outside the Cayman Islands or Bermuda in which a Paying Agent
is
located, other than those resulting from, or required to be paid in connection
with, the enforcement of the 2027 Securities, the Indenture or any other such
document or instrument following the occurrence of any Event of Default with
respect to the 2027 Securities.
Section
2.14
Non-Applicability
of Certain Sections
.
Sections
11.08, 11.09 and 11.10 of the Base Indenture shall not apply to the 2027
Securities.
ARTICLE
III
APPOINTMENT
OF THE TRUSTEE FOR THE 2027 SECURITIES
Section
3.1
Appointment
of Trustee
.
Pursuant
and subject to the Indenture, the Company and the Trustee hereby constitute
the
Trustee as trustee to act on behalf of the Holders of the 2027 Securities,
and
as the principal Paying Agent and Security Registrar for the 2027 Securities,
effective upon execution and delivery of this Fourth Supplemental
Indenture. By execution, acknowledgment and delivery of this Fourth
Supplemental Indenture, the Trustee hereby accepts appointment as Trustee,
Paying Agent and Security Registrar with respect to the 2027 Securities, and
agrees to perform such trusts upon the terms and conditions set forth in the
Indenture and in this Fourth Supplemental Indenture.
Section
3.2
Rights,
Powers, Duties and Obligations of the Trustee
.
Any
rights, powers, duties and obligations by any provisions of the Indenture
conferred or imposed upon the Trustee shall, insofar as permitted by law, be
conferred or imposed upon and exercised or performed by the Trustee with respect
to the 2027 Securities.
ARTICLE
IV
MISCELLANEOUS
Section
4.1
Application
of Fourth Supplemental Indenture
.
Each
and
every term and condition contained in this Fourth Supplemental Indenture that
modifies, amends or supplements the terms and conditions of the Base Indenture
with respect to the 2027 Securities shall apply only to the 2027 Securities
created hereby and not to any past or future series of Securities issued under
the Base Indenture.
Section
4.2
Benefits
of Fourth Supplemental Indenture
.
Nothing
contained in this Fourth Supplemental Indenture shall or shall be construed
to
confer upon any person other than a Holder of the 2027 Securities, the Company
and the Trustee any right or interest to avail itself or himself, as the case
may be, of any benefit under any provision of the Base Indenture or this Fourth
Supplemental Indenture.
Section
4.3
Amendment
of Fourth Supplemental Indenture
.
The
Company and the Trustee, at any time and from time to time, may amend, modify
or
supplement this Fourth Supplemental Indenture in accordance with the provisions
of Article Nine of the Base Indenture.
Section
4.4
Effective
Date
.
This
Fourth Supplemental Indenture shall be effective as of the date first above
written and upon the execution and delivery hereof by each of the parties
hereto.
Section
4.5
Governing
Law; Waiver of Jury Trial; Submission to Jurisdiction; Judgment
Currency
.
THIS
FOURTH SUPPLEMENTAL INDENTURE AND EACH 2027 SECURITY SHALL BE GOVERNED BY,
AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EACH
OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS FOURTH SUPPLEMENTAL INDENTURE,
THE
2027 SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
The
Company and the Trustee hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in the Borough of Manhattan in New York City for
the purposes of all legal proceedings arising out of or relating to the
Indenture. The Company and the Trustee irrevocably waive, to the
fullest extent permitted by applicable law, any objection which they may now
or
hereafter have to the laying of the venue of any such proceeding brought in
such
a court and any claim that any such proceeding brought in such a court has
been
brought in an inconvenient forum. The Company hereby designates and
appoints CT Corporation System, 111 Eighth Avenue, New York, New York 10011,
as
its authorized agent upon which process may be served in any legal suit, action
or proceeding arising out of or relating to the Indenture which may be
instituted in any federal or state court in the Borough of Manhattan, The City
of New York, New York, and agrees that service of process upon such agent,
and
written notice of said service to the Company by the Person serving the same,
shall be deemed in every respect effective service of process upon the Company
in any such suit, action or proceeding and further designates its domicile,
the
domicile of CT Corporation System specified above and any domicile CT
Corporation System may have in the future as its domicile to receive any notice
hereunder (including service of process). If for any reason CT
Corporation System (or any successor agent for this purpose) shall cease to
act
as agent for service of process as provided above, the Company will promptly
appoint a successor agent for this purpose reasonably acceptable to the
Trustee. The Company agrees to take any and all actions as may be
necessary to maintain such designation and appointment of such agent in full
force and effect.
The
Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due (the “Required Currency”) into a currency
in which a judgment will be rendered (the “Judgment Currency”), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the requisite
amount of the Required Currency with the Judgment Currency on the New
York
Banking
Day preceding the day on which a final unappealable judgment is given and (b)
its obligations under the Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery pursuant
to any judgment (whether or not entered in accordance with clause (a)), in
any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under the Indenture. For purpose of
the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or
a legal holiday in The City of New York or a day on which banking institutions
in The City of New York are authorized or obligated by law, regulation or
executive order to be closed.
Section
4.6
Counterparts
.
This
Fourth Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section
4.7
Ratification
of Base Indenture
.
The
Base
Indenture, as supplemented by this Fourth Supplemental Indenture, is in all
respects ratified and confirmed, and this Fourth Supplemental Indenture shall
be
deemed part of the Base Indenture in the manner and to the extent herein and
therein provided.
Section
4.8
Validity
and Sufficiency
.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Fourth Supplemental Indenture or for or
in
respect of the recitals contained herein, all of which are made solely by the
Company.
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed as a deed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
|
XL
CAPITAL LTD, as Issuer
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|
By:
/s/
Kirstin Romann Gould
Name: Kirstin Romann Gould
Title: Executive Vice President, General
Counsel
Corporate Affairs and
Secretary
|
|
THE
BANK OF NEW YORK, as Trustee
|
|
By:
/s/ Franca Ferrera
Name: Franca Ferrera
Title: Assistant Vice
President
|
EXHIBIT
A
FORM
OF NOTE
[If
the
Note is a Global Note, insert - THIS NOTE IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE
FOR
ALL PURPOSES, INCLUDING THE PAYMENT OF PRINCIPAL AND INTEREST.
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES
REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR (II) BY A NOMINEE
OF THE DEPOSITARY OR THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF
SUCH SUCCESSOR DEPOSITARY.]
[If
the
Depository is The Depository Trust Company, insert - UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE
TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
|
No.
CUSIP
No.
$_______________
|
XL
CAPITAL LTD
6.25%
SENIOR NOTES DUE 2027
XL
CAPITAL LTD, an exempted limited company duly organized and existing under
the
laws of the Cayman Islands (the “Company”, which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________ the principal sum of ________________
United States dollars (U.S.$______________) [If the Note is a Global Note,
insert - , as such amount may be increased or decreased as set forth on the
Schedule of Increases or Decreases in Global Note annexed hereto,] on May 15,
2027 (such date is hereinafter referred to as the “Stated Maturity”), and to pay
interest thereon, from May 7, 2007, or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or duly provided for,
at
the rate of 6.25% per annum to, but excluding, the relevant Interest Payment
Date, until the Stated Maturity or early redemption.
Interest
on this Note initially shall be payable semi-annually in arrears on November
15
and May 15 of each year (each, an “Interest Payment Date”), commencing November
15, 2007 through and including the Stated Maturity or early
redemption. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the November 1 and May 1, respectively
(whether or not a Business Day) preceding the relevant Interest Payment
Date.
Any
such
interest not so punctually paid or duly provided for will forthwith cease to
be
payable to the Holder on such Regular Record Date and may be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered
at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice of which shall be given to Holders
of Securities of this series not less than 10 days prior to such Special Record
Date and shall otherwise be payable, all as more fully provided in the
Indenture.
Principal
of and the interest on the Notes will be payable at the Corporate Trust Office,
or, at the option of the Company, by check mailed to each Holder at its address
set forth in the Security Register; provided however, that if a Holder has
given
wire transfer instructions to the Company and the Paying Agent and Security
Registrar at least ten Business Days prior to the applicable payment date,
principal of and the interest on the Notes will be payable by wire transfer
of
immediately available funds to the account specified in such
instructions.
Interest
on the Notes will be computed on the basis of a 360-day year comprised of twelve
30-day months. The amount of interest payable for any period shorter
than a full semi-annual period for which interest is computed will be computed
on the basis of the actual number of days elapsed in the 180-day
period.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect
as
if fully set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefit under
the
Indenture or be valid or obligatory for any purpose.
[Remainder
of Page Intentionally Left Blank; Signature Pages Follow]
IN
WITNESS WHEREOF, the Company has caused this Note to be executed and delivered
as a deed.
Dated:
|
XL
CAPITAL LTD
|
|
By:
_____________________________
Name:
Title:
|
|
By:
_____________________________
Name:
Title:
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
|
The
Bank of New York, as Trustee
|
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By:
_________________________
Authorized Officer
|
[FORM
OF REVERSE]
This
Note
is one of a duly authorized issue of securities of the Company designated as
its
“6.25% Senior Notes due 2027” (herein sometimes referred to as the “Notes”),
initially limited in aggregate principal amount to $325,000,000, issued under
and pursuant to an Indenture, dated as of June 2, 2004 (the “Base Indenture”),
duly executed and delivered, between the Company and The Bank of New York,
as
Trustee (the “Trustee”), and a Fourth Supplemental Indenture, dated as of May 7,
2007 (the “Fourth Supplemental Indenture”), between the Company and the Trustee
(such Base Indenture as amended and supplemented by the Fourth Supplemental
Indenture, the “INDENTURE”), to which the Indenture and all subsequent
indentures supplemental thereto relating to the Notes reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered.
The
Notes
are issuable only in registered form without coupons, in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Notes of this series so issued
are exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the
same.
The
Notes
will be redeemable, in whole at any time or in part from time to time, at the
Company’s option, at a redemption price equal to the accrued and unpaid interest
on the principal amount of the Notes being redeemed to the Redemption Date
plus
the greater of: (A) 100% of the principal amount of the Notes to
be redeemed, and (B) the sum of the present values of the remaining scheduled
payments of principal and interest on the Notes to be redeemed (not including
any portion of such payments of interest accrued to the Redemption Date)
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate, plus 25 basis
points, as provided in, and subject to the terms of, the Indenture.
If
a Tax
Event occurs and is continuing, the Company may, at its option, redeem the
Notes
in whole, but not in part, at any time at a redemption price equal to 100%
of
the principal amount of the Notes, plus accrued and unpaid interest, if any,
to
the Redemption Date and Additional Amounts, if any, then due or that will become
due on the Redemption Date as a result of the redemption, as provided in, and
subject to the terms of, the Indenture.
No
sinking fund is provided for the Notes.
The
Notes
shall constitute the senior, unsecured and unsubordinated obligations of the
Company and shall rank equally in right of payment with all existing and future
senior, unsecured and unsubordinated obligations of the Company.
In
the
case of an Event of Default described in Section 5.01(5) or 5.01(6) of the
Indenture, all unpaid principal of and accrued interest and Additional Amounts
on the Notes then Outstanding shall be due and payable immediately without
any
declaration or other act on the part of the Trustee or the Holders of any
Notes. In the case of all other Events of Default, if any such Event
of Default shall occur and be continuing, the principal of all of the Notes,
together with accrued interest to the date of declaration, may be declared
due
and payable in the manner and with the effect provided in the
Indenture.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the written
consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding and affected thereby. The
Indenture also contains, with certain exceptions as therein provided, provisions
permitting Holders of not less than a majority in principal amount of the
Securities of any series at the time Outstanding, on behalf of the Holders
of
all the Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued in exchange herefor
or in
lieu hereof whether or not notation of such consent or waiver is made upon
this
Note or such other Note.
As
provided in and subject to the provisions of the Indenture, the Holder of this
Note shall not have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless (i) such Holder shall have previously given the
Trustee written notice of a continuing Event of De-
fault,
(ii) the Holders of not less than 25% in principal amount of the Notes that
are
Outstanding shall have made a written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity satisfactory to it, (iii) the Trustee shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity, and (iv) the Trustee shall not have received from the
Holders of a majority in principal amount of the Notes that are Outstanding
a
direction inconsistent with such written request during such 60-day
period. The foregoing shall not apply to any suit instituted by any
Holder of this Note for the enforcement of any payment of principal hereof
or
any premium or interest hereon on or after the respective due dates expressed
herein.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
this Note at the times, places and rate, and in the coin or currency, herein
prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note is registrable on the Security Register upon surrender
of this Note for registration of transfer at the Corporate Trust Office of
the
Trustee or at such other office or agency of the Company as may be designated
by
it for such purpose in the Borough of Manhattan, The City of New York (which
shall initially be an office or agency of the Trustee), or at such other offices
or agencies as the Company may designate, duly endorsed by, or accompanied
by a
written instrument of transfer in form satisfactory to the Security Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing,
and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee
or
transferees by the Security Registrar. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to recover any tax or other governmental
charge payable in connection therewith.
Prior
to
due presentation of this Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner thereof for all purposes,
whether or not such Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
No
recourse for the payment of the principal of (and premium, if any on) or
interest on this Note and no recourse under or upon any obligation, covenant
or
agreement of the Company 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, employee, agent,
officer or director or subsidiary, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute
or
rule of law or by the enforcement of any assessment or penalty or otherwise,
all
such liability being, by the acceptance hereof and as part of consideration
for
the issue hereof, expressly waived and released.
[If
Note
is a Global Note, insert - This Note is a Global Note and is subject to the
provisions of the Indenture relating to Global Notes, including the limitations
in Section 2.03 of the Base Indenture on transfers and exchanges of Global
Notes.]
THE
INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
All
capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM--as tenants in common
|
|
UNIF
GIFT MIN ACT-
|
______
Custodian _______
|
|
|
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(Cust) (Minor)
|
|
TEN
ENT--as tenants by the entireties
|
|
|
under
Uniform Gifts to
|
|
JT
TEN--as joint tenants with rights of
|
|
|
|
|
survivorship
and not as tenants in common
|
|
|
Minors
Act ________________
|
|
|
|
|
(State)
|
Additional
abbreviations may also be used though not on the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Note to:
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
(Insert
assignee’s social security or tax identification number)
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
(Insert
address and zip code of assignee)
and
irrevocably appoints ________________ agent to transfer this Note on the
Security Register. The agent may substitute another to act for him or
her.
Dated:
Signed:
Signature
Guarantee:
(Sign
exactly as your name appears on the other side of this Note)
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“Stamp”) or such
other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
[TO
BE ATTACHED TO GLOBAL NOTE]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL NOTE
The
following increases or decreases in this Global Note have been
made:
Amount
of Decrease
in Stated Amount of
the Global
Note
|
Amount
of Increase
in Stated Amount of
the Global
Note
|
Stated
Amount of
the Global Note
Following Such
Decrease/Increase
|
Signature
of Authorized
Officer of Trustee
|
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