UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 8, 2007
FLAGSTONE REINSURANCE HOLDINGS LIMITED
(Exact name of registrant as specified in its charter)
Bermuda |
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001-33364 |
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98-0481623 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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Crawford House, 23 Church Street, Hamilton HM 11, Bermuda
(Address of principal executive offices; zip code)
Registrants telephone number, including area code: (441) 278-4300
(Former name or former address, if changed since last report): Not Applicable
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On June 8, 2007, Flagstone Reinsurance Holdings Limited (the Company) entered into an indenture (the Indenture) by and among its wholly owned indirect subsidiary, Flagstone Finance S.A., as Issuer (the Issuer), the Company, as Guarantor, and Wilmington Trust Company, as Trustee (the Trustee) relating to $50 million in aggregate principal value of Floating Rate Deferrable Interest Junior Subordinated Notes (the Notes) due 2037.
The Notes will mature on July 30, 2037. The Notes bear interest at a variable rate per year, reset quarterly, equal to LIBOR (as defined in the Indenture) plus 3.00%.
The Notes may be redeemed in whole or in part on or after July 30, 2012 at the option of the Issuer at a redemption price equal to the principal amount of the notes being redeemed, plus accrued but unpaid interest to the redemption date.
The Indenture contains customary covenants relating to restrictions on the ability of the Issuer and the Company to consolidate, merge or convey or transfer substantially all of their assets. The Indenture also contains customary events of default.
The above description of the Indenture is not intended to be complete and is qualified in its entirety by the specific language in the Indenture, a copy of which is attached to this report as Exhibit 4.1, and incorporated herein by reference.
ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.
Reference is made to Item 1.01 and the description of the Notes and the Indenture contained therein, each of which is hereby incorporated by reference into this Item 2.03.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits:
Exhibit No. |
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Description |
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4.1 |
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Indenture, dated as of June 8, 2007, between Flagstone Finance S.A., as Issuer, Flagstone Reinsurance Holdings Limited, as Guarantor, and Wilmington Trust Company, as Trustee. |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: June 14, 2007 |
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FLAGSTONE REINSURANCE HOLDINGS LIMITED |
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By: |
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/s/ James OShaughnessy |
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Name: James OShaughnessy |
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Title: Chief Financial Officer |
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Exhibit No. |
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Description |
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4.1 |
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Indenture, dated as of June 8, 2007, between Flagstone Finance S.A., as Issuer, Flagstone Reinsurance Holdings Limited, as Guarantor, and Wilmington Trust Company, as Trustee. |
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EXHIBIT 4.1
JUNIOR SUBORDINATED INDENTURE
between
FLAGSTONE FINANCE S.A.,
as Issuer,
FLAGSTONE REINSURANCE HOLDINGS LIMITED,
as Guarantor,
and
WILMINGTON TRUST COMPANY,
as Trustee
Dated as of June 8, 2007
ARTICLE I. |
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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1 |
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SECTION 1.1 |
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Definitions |
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1 |
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SECTION 1.2 |
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Compliance Certificate and Opinions |
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10 |
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SECTION 1.3 |
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Forms of Documents Delivered to Trustee |
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10 |
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SECTION 1.4 |
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Acts of Holders |
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11 |
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SECTION 1.5 |
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Notices, Etc. to Trustee, Company and Guarantor |
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13 |
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SECTION 1.6 |
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Notice to Holders; Waiver |
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13 |
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SECTION 1.7 |
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Effect of Headings and Table of Contents |
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14 |
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SECTION 1.8 |
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Successors and Assigns |
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14 |
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SECTION 1.9 |
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Separability Clause |
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14 |
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SECTION 1.10 |
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Benefits of Indenture |
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14 |
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SECTION 1.11 |
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Governing Law |
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14 |
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SECTION 1.12 |
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Submission to Jurisdiction |
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14 |
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SECTION 1.13 |
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Non-Business Days |
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15 |
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SECTION 1.14 |
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Agent for Service of Process |
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15 |
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SECTION 1.15 |
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Currency Indemnity |
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15 |
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SECTION 1.16 |
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No Recourse Against Others |
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16 |
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ARTICLE II. SECURITY FORMS |
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17 |
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SECTION 2.1 |
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Form of Security |
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17 |
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SECTION 2.2 |
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Restricted Legend |
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23 |
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SECTION 2.3 |
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Form of Trustees Certificate of Authentication |
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28 |
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SECTION 2.4 |
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Temporary Securities |
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28 |
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SECTION 2.5 |
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Definitive Securities |
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29 |
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ARTICLE III. THE SECURITIES |
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29 |
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SECTION 3.1 |
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Payment of Principal and Interest |
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29 |
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SECTION 3.2 |
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Denominations |
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31 |
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SECTION 3.3 |
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Execution, Authentication, Delivery and Dating |
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31 |
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SECTION 3.4 |
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Global Securities |
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32 |
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SECTION 3.5 |
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Registration, Transfer and Exchange Generally |
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41 |
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SECTION 3.6 |
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Mutilated, Destroyed, Lost and Stolen Securities |
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42 |
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SECTION 3.7 |
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Persons Deemed Owners |
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42 |
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SECTION 3.8 |
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Cancellation |
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43 |
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SECTION 6.7 |
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Resignation and Removal; Appointment of Successor |
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58 |
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SECTION 6.8 |
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Acceptance of Appointment by Successor |
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59 |
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SECTION 6.9 |
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Merger, Conversion, Consolidation or Succession to Business |
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59 |
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SECTION 6.10 |
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Not Responsible for Recitals or Issuance of Securities |
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59 |
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SECTION 6.11 |
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Appointment of Authenticating Agent |
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59 |
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ARTICLE VII. HOLDERS LISTS AND REPORTS BY COMPANY |
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61 |
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SECTION 7.1 |
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Company to Furnish Trustee Names and Addresses of Holders |
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61 |
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SECTION 7.2 |
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Preservation of Information, Communications to Holders |
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61 |
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SECTION 7.3 |
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Reports by Company and the Guarantor |
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62 |
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ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
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63 |
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SECTION 8.1 |
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Company and Guarantor May Consolidate, Etc., Only on Certain Terms |
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63 |
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SECTION 8.2 |
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Successor Company Substituted |
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65 |
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ARTICLE IX. SUPPLEMENTAL INDENTURES |
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66 |
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SECTION 9.1 |
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Supplemental Indentures without Consent of Holders |
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66 |
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SECTION 9.2 |
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Supplemental Indentures with Consent of Holders |
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66 |
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SECTION 9.3 |
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Execution of Supplemental Indentures |
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67 |
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SECTION 9.4 |
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Effect of Supplemental Indentures |
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67 |
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SECTION 9.5 |
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Reference in Securities to Supplemental Indentures |
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67 |
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ARTICLE X. COVENANTS |
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68 |
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SECTION 10.1 |
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Payment of Principal, Premium, if any, and Interest |
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68 |
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SECTION 10.2 |
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Money for Security Payments to be Held in Trust |
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68 |
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SECTION 10.3 |
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Statement as to Compliance |
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69 |
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SECTION 10.4 |
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Calculation Agent |
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69 |
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SECTION 10.5 |
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Additional Amounts |
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70 |
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SECTION 10.6 |
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Additional Covenants |
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71 |
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SECTION 10.7 |
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Waiver of Covenants |
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72 |
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SECTION 10.8 |
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Treatment of Securities |
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73 |
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ARTICLE XI. REDEMPTION OF SECURITIES |
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73 |
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SECTION 11.1 |
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Optional Redemption |
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73 |
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SECTION 11.2 |
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Special Event Redemption |
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73 |
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SECTION 11.3 |
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Election to Redeem; Notice to Trustee |
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73 |
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SECTION 14.8 |
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Notice to Trustee |
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85 |
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SECTION 14.9 |
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Reliance on Judicial Order or Certificate of Liquidating Agent |
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86 |
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SECTION 14.10 |
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Trustee Not Fiduciary for Holders of Senior Debt of the Guarantor |
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86 |
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SECTION 14.11 |
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Rights of Trustee as Holder of Senior Debt of the Guarantor; Preservation of Trustees Rights |
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86 |
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SECTION 14.12 |
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Article Applicable to Paying Agents |
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86 |
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Schedule A |
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Determination of LIBOR |
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Exhibit A |
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Form of Officers Financial Certificate |
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Exhibit B |
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Form of Rule 144A to Regulation S Security Transfer Certificate |
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Exhibit C |
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Form of Regulation S to Rule 144A Security Transfer Certificate |
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Exhibit D |
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Form of Transfer Certificate for non-Global Securities |
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Exhibit E |
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Form of Officers Certificate Under Section 10.3 |
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JUNIOR SUBORDINATED INDENTURE, dated as of June 8, 2007, between FLAGSTONE FINANCE S.A., a Luxembourg company (the Company), FLAGSTONE REINSURANCE HOLDINGS LIMITED, a Bermuda company (the Guarantor), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Trustee (in such capacity, the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of its floating rate, unsecured junior subordinated deferrable interest notes (the Securities ) and to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered; and the Guarantor has duly authorized the issuance of its guarantee of the Securities (the Guarantee ) under this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of the Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, this Indenture Witnesseth:
For and in consideration of the premises and the subscription for or purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
Act when used with respect to any Holder, has the meaning specified in Section 1.4 .
Additional Amounts has the meaning specified in Section 10.5 .
Additional Interest means the interest, if any, that shall accrue on any amounts payable on the Securities, the payment of which has not been made on the applicable Interest Payment Date and which shall accrue at the rate per annum specified or determined as specified in such Security(ies), in each case to the extent legally enforceable.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, control, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Applicable Accounting Principles means accounting practices prescribed or permitted by the National Association of Insurance Commissioners, if then applicable to the Guarantor or its subsidiaries, and/or the applicable insurance department or regulator of the jurisdiction of domicile of such Regulated Insurance Company, and in each case, applied consistently throughout the periods involved.
Applicable Depositary Procedures means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time.
Applicable Insurance Regulatory Authority means, when used with respect to any Regulated Insurance Company, (x) the insurance department or similar administrative authority or agency located in each state or jurisdiction (foreign or domestic) in which such Regulated Insurance Company is domiciled or (y) to the extent asserting regulatory jurisdiction over such Regulated Insurance Company, the insurance department, authority or agency in each state or jurisdiction (foreign or domestic) in which such Regulated Insurance Company is licensed, and shall include any Federal or national insurance regulatory department, authority or agency that may be created and that asserts insurance regulatory jurisdiction over such Regulated Insurance Company.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 6.11 to act on behalf of the Trustee to authenticate the Securities.
Bankruptcy Code means Title 11 of the United States Code or any successor statute(s) thereto, or any similar federal or state law for the relief of debtors, in each case as amended from time to time.
Board of Directors means the board of directors of the Company or the Guarantor, as the context requires, or any duly authorized committee of that board.
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Board Resolution means a copy of a resolution certified by the Secretary, an Assistant Secretary, Director, Officer, Manager, General Counsel or any other duly authorized or appointed person or agent of the Company or the Guarantor, as the context requires, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
Business Day means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in the City of New York are authorized or required by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee is closed for business.
Calculation Agent has the meaning specified in Section 10.4 .
Common Stock means the common shares, par value $0.01 per share, of the Guarantor.
Company means the Person named as the Company in the first paragraph of this Indenture until a successor shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Company shall mean such successor.
Company Request and Company Order mean, respectively, the written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its Chief Executive Officer, one of its Directors, its President, its General Counsel or one of its Vice Presidents, and by its Chief Financial Officer, one of its Managers, one of its Directors, its Treasurer, one of its Assistant Treasurers, its Secretary or one of its Assistant Secretaries, and delivered to the Trustee.
Covenant Significant Subsidiaries shall have the meaning set forth in Section 10.6 .
Corporate Trust Office means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of this Indenture is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Capital Markets, or such other address as the Trustee may designate from time to time by notice to the Holders, the Company and the Guarantor or the principal corporate trust office of any successor trustee.
Debt means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person, whether currently existing or hereafter incurred and whether or not contingent and without duplication, (i) every obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable or other accrued liabilities arising in the ordinary course of business); (v) every capital lease obligation of such Person; (vi) all indebtedness of such Person, whether incurred on or prior to the date of this Indenture or thereafter incurred, for claims in respect of derivative products, including interest rate, foreign exchange rate and commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person and all dividends of
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another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any obligation of the type referred to in clauses (i) through (vii).
Defaulted Interest has the meaning specified in Section 3.1 .
Depositary means an organization registered as a clearing agency under the Exchange Act that is designated as Depositary by the Company or any successor thereto. DTC will be the initial Depositary.
Depositary Participant means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Depositary effects book-entry transfers and pledges of securities deposited with the Depositary.
Directors Certificate means a certificate signed by at least two directors of the Company or the Guarantor, as the context requires, and delivered to the Trustee.
Dollar or $ means the currency of the United States of America that, as at the time of payment, is legal tender for the payment of public and private debts.
DTC means The Depository Trust Company, a New York corporation, or any successor thereto.
Event of Default has the meaning specified in Section 5.1 .
Exchange Act means the Securities Exchange Act of 1934 or any statute successor thereto, in each case as amended from time to time.
Expiration Date has the meaning specified in Section 1.4 .
Extension Period has the meaning specified in Section 3.9 .
GAAP means United States generally accepted accounting principles, consistently applied, from time to time in effect.
Global Security means a Security that evidences all or part of the Securities, the ownership and transfers of which shall be made through book entries by a Depositary.
Government Obligation means (a) any security that is (i) a direct obligation of the United States of America of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any Government Obligation that is specified in clause (a) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any Government Obligation that is so specified
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and held, provided , that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
Guarantee has the meaning specified in the first recital of this Indenture.
Guarantor means the Person named as the Guarantor in the first paragraph of this Indenture until a successor shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Guarantor shall mean such successor.
Holder means a Person in whose name a Security is registered in the Securities Register.
Indenture means this instrument as originally executed or as it may from time to time be amended or supplemented by one or more amendments or indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
Insurance Business means one or more aspects of the business of selling, issuing or underwriting insurance or reinsurance.
Interest Payment Date means January 30, April 30, July 30 and October 30 of each year, commencing July 30, 2007 (or as set forth in any Security issued hereunder) during the term of this Indenture, as such dates may be adjusted pursuant to Section 1.13.
Investment Company Act means the Investment Company Act of 1940 or any successor statute thereto, in each case as amended from time to time.
Investment Company Event means the receipt by the Company of an Opinion of Counsel experienced in such matters to the effect that, as a result of the occurrence of a change in law or regulation (including any announced prospective change) or a written change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, there is more than an insubstantial risk that the Company is or, within ninety (90) days of the date of such opinion will be, considered an investment company that is required to be registered under the Investment Company Act, which change or prospective change becomes effective or would become effective, as the case may be, on or after the Original Issue Date.
LIBOR has the meaning specified in Schedule A .
LIBOR Business Day has the meaning specified in Schedule A .
LIBOR Determination Date has the meaning specified in Schedule A .
Maturity, when used with respect to any Security, means the date on which the principal of such Security or any installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
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New York Court has the meaning specified in Section 1.12 .
Notice of Default means a written notice of the kind specified in Section 5.1(c) .
Officers Certificate means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, a Deputy Chairman, the Chief Executive Officer, the President, the General Counsel or a Vice President, and by the Chief Financial Officer, a Manager, a Director, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or the Guarantor, as the context requires, and delivered to the Trustee.
Operative Documents means the Indenture, the Subscription Agreement and the Securities.
Opinion of Counsel means a written opinion of counsel, who may be counsel for or an employee of the Company or the Guarantor or any Affiliate of the Company or the Guarantor.
Optional Redemption Price has the meaning set forth in Section 11.1 .
Original Issue Date means the date of original issuance of each Security.
Outstanding means, when used in reference to any Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Securities that have been paid or in substitution for or in lieu of which other Securities have been authenticated and delivered pursuant to the provisions of this Indenture, unless proof satisfactory to the Trustee is presented that any such Securities are held by Holders in whose hands such Securities are valid, binding and legal obligations of the Company;
provided, that, in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or such other obligor shall be disregarded and deemed not to be Outstanding Securities unless the Company holds all of the Outstanding Securities, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as
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Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or such other obligor.
Paying Agent means the Trustee or any Person authorized by the Company to pay the principal of or any premium or interest on, or other amounts in respect of, any Securities on behalf of the Company.
Person means a legal person, including any individual, corporation, company, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, government or any agency or political subdivision thereof, or any other entity of whatever nature.
Place of Payment means, with respect to the Securities, the Corporate Trust Office of the Trustee.
Predecessor Security of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security. For the purposes of this definition, any security authenticated and delivered under Section 3.6 in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Proceeding has the meaning specified in Section 12.2 .
QIB or Qualified Institutional Buyer means a qualified institutional buyer as defined in Rule 144A.
QIB/QP means any Person that, at the time of its acquisition, purported acquisition or proposed acquisition of Securities, is both a QIB and a QP.
QP or Qualified Purchaser means any of (i) a qualified purchaser within the meaning of Section 3(c)(7) of the Investment Company Act or (ii) a company beneficially owned exclusively by one or more qualified purchasers and/or knowledgeable employees with respect to the Company within the meaning of Rule 3c-5 under the Investment Company Act.
Redemption Date means, when used with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this Indenture, subject to adjustment as specified in Section 1.13 .
Redemption Price means, when used with respect to any Security to be redeemed, in whole or in part, the Special Redemption Price or the Optional Redemption Price, as applicable, at which such Security or portion thereof is to be redeemed as fixed by or pursuant to this Indenture.
Reference Banks has the meaning specified in Schedule A .
Regulation S: Regulation S under the Securities Act.
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Regular Record Date for the interest payable on any Interest Payment Date with respect to the Securities (other than a Maturity date) means the date that is fifteen (15) days preceding such Interest Payment Date (whether or not a Business Day).
Regulated Insurance Company means any subsidiary of the Guarantor, whether now owned or hereafter acquired, that is authorized or admitted to carry on or transact Insurance Business in any jurisdiction (foreign or domestic) and is regulated by any Applicable Insurance Regulatory Authority.
Responsible Officer means, when used with respect to the Trustee, the officer in the Corporate Trust Office of the Trustee having direct responsibility for the administration of this Indenture.
Rights Plan means a plan of the Guarantor providing for the issuance by the Guarantor to all holders of its Common Stock of rights entitling the holders thereof to subscribe for or purchase, directly or indirectly, shares of its Common Stock which rights (i) are deemed to be transferred with such shares of such Common Stock and (ii) are also issued in respect of future issuances of such Common Stock, in each case until the occurrence of a specified event or events.
Rule 144A : Rule 144A under the Securities Act.
SEC means the Securities and Exchange Commission
Securities or Security means any debt securities or debt security, as the case may be, authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933 or any successor statute thereto, in each case as amended from time to time.
Securities Register and Securities Registrar have the respective meanings specified in Section 3.5 .
Senior Debt means the principal of and any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or the Guarantor, as the context requires, whether or not such claim for post-petition interest is allowed in such proceeding) all Debt of the Company or the Guarantor, as the context requires, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless it is provided in the instrument creating or evidencing the same or pursuant to which the same is outstanding that the obligations under such instrument are not superior in right of payment to the Securities, in the case of the Company, or the Guarantee, in the case of the Guarantor, issued under this Indenture; provided, however, that if the Company or the Guarantor, as the context requires, is subject to the regulation and supervision of any Applicable Insurance Regulatory Authority, the Company or the Guarantor, as the context requires, shall have received the approval of each appropriate Applicable Insurance Regulatory Authority prior to issuing any such obligation if then required; and provided, further , that Senior Debt shall not be deemed to include (i) any other debt securities and guarantees in respect of such debt securities issued to any trust (or a trustee of any such trust), partnership or other entity affiliated with the Company or the Guarantor, as the context requires, that is a financing vehicle of the Company or the
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Guarantor (a financing entity) in connection with the issuance by such financing entity of equity securities or other securities that are treated as equity capital for regulatory capital purposes guaranteed by the Company or the Guarantor, as the context requires, pursuant to an instrument that ranks pari passu with or junior in right of payment to the Securities , in the case of the Company, or the Guarantee, in the case of the Guarantor, or (ii) in the case of the Guarantor, $120,000,000 subordinated debt securities and 13,000,000 subordinated debt securities each issued by the Guarantor pursuant to the terms of a purchase agreement dated August 23, 2006.
Significant Subsidiary(ies) is as defined in Section 1-02(w) of Regulation S-X of the Securities Act.
Special Event means the occurrence of an Investment Company Event or a Tax Event.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.1 .
Special Redemption Price has the meaning set forth in Section 11.2 .
Stated Maturity means July 30, 2037, subject to adjustment as specified in Section 1.13 .
Statutory Financial Statements means all financial statements of the Guarantors subsidiary insurance companies for each relevant period, each prepared in accordance with Applicable Accounting Principles.
Subscriber has the meaning given to the Subscriber in a Subscription Agreement.
Subscription Agreement means the subscription agreement(s) between the Company and the Subscriber named therein.
Subsidiary means a Person more than fifty percent (50%) of the outstanding voting stock or other voting interests of which is owned, directly or indirectly, by the Guarantor or by one or more other Subsidiaries, or by the Guarantor and one or more other Subsidiaries. For purposes of this definition, voting stock means stock that ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
Tax Event means the receipt by the Company of an Opinion of Counsel experienced in such matters to the effect that, as a result of (a) any amendment to or change (including any announced prospective change) in the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein or (b) any judicial decision or any official administrative pronouncement (including any private letter ruling, technical advice memorandum or field service advice) or regulatory procedure, including any notice or announcement of intent to adopt any such pronouncement or procedure (an Administrative Action ), regardless of whether such judicial decision or Administrative Action is issued to or in connection with a proceeding involving the Company and whether or not subject to review or appeal, which amendment, change, judicial decision or Administrative Action is enacted, promulgated or announced, in each case, on or after the Original Issue Date, there is more than
9
an insubstantial risk that interest payable by the Company on the Securities is not, or within ninety (90) days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes, or that the Company will be subject to more than a de minimis amount of other taxes, duties or other governmental charges.
Trustee means the Person named as the Trustee in the first paragraph of this instrument, solely in its capacity as such and not in its individual capacity, until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and, thereafter, Trustee shall mean or include each Person who is then a Trustee hereunder.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended and as in effect on the date as of this Indenture.
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11
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Any request, demand, authorization, direction, notice, consent, waiver, Act of Holders, or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first class, postage prepaid, to each Holder affected by such event to the address of such Holder as it appears in the Securities Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. If, by reason of the suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders when said notice is required to be given pursuant to any provision of this Indenture, then any manner of service that effectuates delivery of such notice (as shall be satisfactory to the Trustee) shall be a sufficient giving of such notice. In any case where notice to
13
Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any request, demand, authorization, direction, notice, consent or waiver required by or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction of this Indenture.
This Indenture shall be binding upon and shall inure to the benefit of any successor to the Company, the Guarantor and the Trustee, including any successor by operation of law. Except in connection with a transaction involving the Company or the Guarantor that is permitted under Article VIII , neither the Company nor the Guarantor shall assign its obligations hereunder; provided, however, that the Company may assign its obligations hereunder and under the Securities to one of its Subsidiaries or to the Guarantor or one of its Subsidiaries if the assignee agrees in writing to perform all of such obligations, in which case the Company shall be discharged from all of such obligations.
If any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors and assigns, the holders of Senior Debt and the Holders of the Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
This Indenture, the Securities and the Guarantee and the rights and obligations of each of the Holders, the Company, the Guarantor and the Trustee shall be construed and enforced in accordance with and governed by the laws of the State of New York without reference to its conflict of laws provisions (other than Section 5-1401 of the General Obligations Law).
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ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN) (COLLECTIVELY, NEW YORK COURT ). BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE.
If any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or the Securities) payment of interest, premium, if any, or principal or other amounts in respect of such Security shall not be made on such date, but shall be made on the next succeeding Business Day (and additional interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after any such Interest Payment Date, other than Maturity date, as the case may be, through but excluding such next succeeding Business Day) except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity.
The Company and the Guarantor will designate and appoint CT Corporation System in New York City as its process agent (the Process Agent ) upon which process may be served in any action arising out of or relating to this Indenture which may be instituted in any New York Court by the Trustee or the Holders, in accordance with legal procedures prescribed for such courts within fifteen (15) days of execution of the Indenture by the parties hereto, and will expressly consent to the non-exclusive jurisdiction of any such court in respect of any such action, and waive any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment may only be revoked upon the appointment of a new Process Agent in New York City, by the Company or the Guarantor, as the case may be, and such Process Agents acceptance in writing of such appointment upon the same terms specified herein prior to the revocation of the previous Process Agent. Service of process upon the Process Agent and written notice of such service of process to it shall be deemed, in every respect, effective service of process upon the Company or the Guarantor, as the case may be. Nothing herein shall in any way be deemed to limit the ability of the Trustee or the Holders to serve any such legal process, summons, notices and documents in any other manner permitted by applicable law or to obtain jurisdiction over the Company or the Guarantor or to bring actions, suits or proceedings against the Company or the Guarantor in such other jurisdictions, and in such manner, as may be permitted by applicable law.
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If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to any payment due hereunder, it becomes necessary to convert into the currency of such jurisdiction (the Judgment Currency ) any amount due hereunder in any currency other than the Judgment Currency (the Currency Due ), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given. For this purpose, rate of exchange means the rate at which the Trustee is able, on the relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its normal practices. In the event that there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given and the date of payment of the amount due, the Company will, on the day of payment, pay such additional amount, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount paid on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of payment is the amount then due hereunder in the Currency Due. If the amount of the Currency Due which the Trustee would be able to purchase at such rate of exchange is less than the amount of the Currency Due originally due to it, the Company and the Guarantor shall indemnify and save the Trustee (including in its individual capacity) and the Holders harmless from and against loss or damage arising as a result of such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations contained herein, shall give rise to a separate and independent cause of action and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or under any judgment or order.
No director, officer, employee, incorporator, Affiliate or stockholder of the Company or the Guarantor shall have any liability for any obligations of the Company or the Guarantor under the Securities, the Guarantee or the Indenture or for a claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.
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FLAGSTONE FINANCE S.A.
Floating Rate Deferrable Interest Junior Subordinated Note due 2037
[REG S CUSIP NUMBER:
ISIN NUMBER.:]
[144A CUSIP NUMBER:
ISIN NUMBER.:]
No. [S/R] |
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$ |
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Flagstone Finance S.A., a Luxembourg company (hereinafter called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to [___________] or registered assigns, the principal sum of up to [_________________________] Dollars ($[__________]) or such lesser amount as is specified in Schedule A [ if the Security is a Global Security, then insert or such other principal
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amount represented hereby as may be set forth in the records of the Securities Registrar hereinafter referred to in accordance with the Indenture] on July 30, 2037 (subject to Section 1.13 of the Indenture), unless redeemed prior to such date in accordance herewith and with the Indenture. The Company further promises to pay interest on said principal sum from _________, 2007, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on January 30, April 30, July 30 and October 30 of each year, commencing July 30, 2007, or if any such day is not a Business Day, on the next succeeding Business Day (and additional interest shall accrue in respect of the amounts whose payment is so delayed for the period from and after any such Interest Payment Date, other than a Maturity date, through but excluding such next succeeding Business Day), except that, if such Business Day falls in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on the Interest Payment Date, at a variable rate per annum, reset quarterly on an Interest Payment Date, equal to LIBOR plus 3.00%, together with Additional Amounts, if any, as provided in Section 10.5 of the Indenture, until the principal hereof is paid or duly provided for or made available for payment; provided , further , that any overdue principal, premium, if any, or Additional Amounts and any overdue installment of interest shall bear Additional Interest (to the extent that the payment of such interest shall be legally enforceable) at a variable rate per annum, reset quarterly on an Interest Payment Date, equal to LIBOR plus 3.00%, compounded quarterly, from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. Notwithstanding the foregoing, in no event shall interest accrue hereon at a rate that is higher than the maximum rate permitted by New York law, as the same may be modified by United States law of general application.
The amount of interest payable for any interest period shall be computed and paid on the basis of a 360-day year and the actual number of days elapsed in the relevant interest period. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date (other than a Maturity date) shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than ten (10) days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
So long as no Event of Default has occurred and is continuing, the Company shall have the right, at any time and from time to time during the term of this Security, to defer the payment of interest on this Security for a period of up to twenty (20) consecutive quarterly interest payment periods (each such period, an Extension Period ), during which Extension Period(s), no interest shall be due and payable. No Extension Period shall end on a date other than an Interest Payment Date, and no Extension Period shall extend beyond the Stated Maturity of the principal of this Security. No interest shall be due and payable during an Extension Period, except at the end thereof, but each installment of interest that would otherwise have been due and
18
payable during such Extension Period shall bear Additional Interest (to the extent payment of such interest would be legally enforceable) at a variable rate per annum, reset quarterly on an Interest Payment Date, equal to LIBOR plus 3.00%, compounded quarterly, from the dates on which amounts would have otherwise been due and payable until paid or made available for payment. At the end of any such Extension Period, the Company shall pay all interest then accrued and unpaid on this Security, together with such Additional Interest. Prior to the termination of any such Extension Period, the Company may further defer the payment of interest; provided , that (i) all such previous and further extensions comprising such Extension Period do not exceed twenty (20) consecutive quarterly interest payment periods, (ii) no Extension Period shall end on a date other than an Interest Payment Date and (iii) no Extension Period shall extend beyond the Stated Maturity of the principal of this Security. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due on any Interest Payment Date, the Company may elect to begin a new Extension Period; provided , that (i) such Extension Period does not exceed twenty (20) consecutive quarterly interest payment periods, (ii) no Extension Period shall end on a date other than an Interest Payment Date, (iii) no Extension Period shall extend beyond the Stated Maturity of the principal of this Security and (iv) no Event of Default has occurred and is continuing. The Company shall give the Holder of this Security and the Trustee written notice of its election to begin any such Extension Period at least five (5) Business Days prior to the next succeeding Interest Payment Date on which interest on this Security would be payable but for such deferral.
Under the Indenture, during any such Extension Period, the Guarantor shall not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Guarantors capital stock or make any guarantee payments with respect to the foregoing, (ii) make any payment of principal of or any interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Guarantor that rank pari passu in all respects with or junior in interest to the Guarantee (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Guarantor in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, (2) a dividend reinvestment or stockholder stock purchase plan and/or (3) the issuance of capital stock of the Guarantor (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (b) as a result of an exchange or conversion of any class or series of the Guarantors capital stock for any class or series of the Guarantor capital stock or of any class or series of the Guarantors indebtedness for any class or series of the Guarantors capital stock, (c) the purchase of fractional interests in shares of the Guarantors capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan, or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock and any cash payments in lieu of fractional shares issued in connection therewith), or (iii) enter into any contracts with shareholders holding more than 10% of the outstanding shares of common stock of the Guarantor other than on an arms-length-basis and in the ordinary course of business.
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Payment of principal of, premium, if any, and interest on this Security shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Payments of principal, premium, if any, and interest due at the Maturity of this Security shall be made at the Place of Payment upon surrender of such Securities to the Paying Agent, and other payments of interest shall be made by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Paying Agent at least ten (10) Business Days prior to the date for payment by the Person entitled thereto unless proper written transfer instructions have not been received by the relevant date, in which case such payments shall be made by check mailed to the address of such Person as such address shall appear in the Security Register.
The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Debt of the Company, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Debt of the Company, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture or the Guarantee or be valid or obligatory for any purpose.
[FORM OF REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the Company (the Securities ) issued under the Junior Subordinated Indenture, dated as of June 8, 2007 (the Indenture ), among the Company, Flagstone Reinsurance Holdings Limited (hereinafter called the Guarantor, which term includes any successor Person under the Indenture hereinafter referred to) and Wilmington Trust Company, as trustee (in such capacity, the Trustee , which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee, the holders of Senior Debt and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered.
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
The Company may, on any Interest Payment Date, at its option and in accordance with the Indenture, on or after July 30, 2012 and subject to the terms and conditions of Article XI of the Indenture, redeem this Security in whole at any time or in part from time to time at a Redemption Price equal to one hundred percent (100%) of the principal amount hereof, together, in the case of any such redemption, with accrued interest, including any Additional Interest, through but excluding the date fixed as the Redemption Date; provided , that the Company shall
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have received the prior approval of any Applicable Insurance Regulatory Authority then required.
In addition, upon the occurrence and during the continuation of a Special Event, the Company may, at its option and in accordance with the Indenture, redeem this Security, in whole but not in part, subject to the terms and conditions of Article XI of the Indenture at a Redemption Price equal to one hundred seven and one half percent (107.5%) of the principal amount hereof, together, in the case of any such redemption, with accrued interest, including any Additional Interest, through but excluding the date fixed as the Redemption Date; provided , that the Company shall have received the prior approval of any Applicable Insurance Regulatory Authority then required.
In the event of redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. If less than all the Securities are to be redeemed, the particular Securities to be redeemed shall be selected not more than sixty (60) days prior to the Redemption Date by the Trustee from the Outstanding Securities not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security.
The Indenture permits, with certain exceptions as herein and therein provided, the Company, the Guarantor and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in any manner the rights and obligations of the Company, the Guarantor and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities, on behalf of the Holders of all Securities, to waive compliance by the Company or the Guarantor 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 Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium, if any, and interest, including any Additional Interest (to the extent legally enforceable), on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar and duly executed by, the Holder hereof or such Holders attorney duly authorized in writing, and thereupon one or more new Securities, of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
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The Securities are issuable only in registered form without coupons in minimum denominations of $100,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.
The Company and, by its acceptance of this Security or a beneficial interest herein, the Holder of, and any Person that acquires a direct or indirect beneficial interest in, this Security intend and agree to treat this Security as indebtedness of the Company, for United States federal, state and local tax purposes.
This Security shall be construed and enforced in accordance with and governed by the laws of the State of New York, without reference to its conflict of laws provisions (other than Section 5-1401 of the General Obligations Law).
Schedule A
The initial principal amount of this Note is $________. The aggregate principal amount of any Notes issued or canceled in exchange for a portion or portions hereof, any portion or portions hereof exchanged for a definitive certificated note or other global note and any portion or portions of a definitive certificated note or other global note exchanged for a portion or portions hereof:
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed on this ____ day of __________, 20__.
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Flagstone Finance S.A. |
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By: |
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[ IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (DTC) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. ]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT OR BY REGULATION S UNDER THE SECURITIES ACT.
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THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE COMPANY AND THE GUARANTOR THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE COMPANY OR THE GUARANTOR, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING SUCH SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN ACCREDITED INVESTOR (WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT), FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (V) TO A PERSON THAT IS NEITHER A U.S. PERSON (AS DEFINED IN REGULATION S) NOR A U.S. RESIDENT (WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE INVESTMENT COMPANY ACT)) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S, ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE PERSONS WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION, EACH OF WHICH IS NEITHER A U.S. PERSON (AS DEFINED IN REGULATIONS S) NOR A U.S. RESIDENT (WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT) OR (VI) PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND, IN THE CASE OF (III) OR (VI), SUBJECT TO THE RIGHT OF THE COMPANY AND THE GUARANTOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER INFORMATION SATISFACTORY TO THEM AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED
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TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ( ERISA ), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE ) (EACH A PLAN ), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING PLAN ASSETS OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1, OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY, OR ANY INTEREST HEREIN, ARE NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR OTHER PLAN TO WHICH TITLE 1 OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE PLAN ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
[ IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (DTC) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC
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OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. ]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT OR BY REGULATION S UNDER THE SECURITIES ACT.
THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE COMPANY AND THE GUARANTOR THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE COMPANY OR THE GUARANTOR, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING SUCH SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN ACCREDITED INVESTOR (WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT), FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (V) TO A PERSON THAT IS NEITHER A U.S. PERSON (AS DEFINED IN REGULATION S) NOR A U.S. RESIDENT (WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE INVESTMENT COMPANY ACT)) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S, ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE PERSONS WITH RESPECT TO
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WHICH IT EXERCISES SOLE INVESTMENT DISCRETION, EACH OF WHICH IS NEITHER A U.S. PERSON (AS DEFINED IN REGULATIONS S) NOR A U.S. RESIDENT (WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT) OR (VI) PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND, IN THE CASE OF (III) OR (VI), SUBJECT TO THE RIGHT OF THE COMPANY AND THE GUARANTOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER INFORMATION SATISFACTORY TO THEM AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
AN INTEREST IN THIS SECURITY MAY NOT BE HELD BY A PERSON THAT IS A U.S. PERSON (AS DEFINED IN REGULATION S) OR A U.S. RESIDENT (WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT) AT ANY TIME.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ( ERISA ), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE ) (EACH A PLAN ), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING PLAN ASSETS OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1, OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR
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ITS PURCHASE AND HOLDING OF THIS SECURITY, OR ANY INTEREST HEREIN, ARE NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR OTHER PLAN TO WHICH TITLE 1 OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE PLAN ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
The Trustees certificate of authentication shall be in substantially the following form:
This represents Securities referred to in the within-mentioned Indenture.
Dated:
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The Securities issued on the Original Issue Date shall be in definitive form. The definitive Securities shall be printed, lithographed or engraved, or produced by any combination of these methods, if required by any securities exchange on which the Securities may be listed, on a steel engraved border or steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
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The Securities shall be in registered form without coupons and shall be issuable in minimum denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
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(A) Notwithstanding the foregoing, if an owner of a beneficial interest in a Global Security wishes at any time to transfer an interest in such Global Security to a Person other than a QIB/QP or a Person that is not a U.S. Person or U.S. Resident pursuant to Regulation S, such transfer shall be effected, subject to
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the Applicable Depositary Procedures, in accordance with the provisions of this Article III and the transferee shall receive a definitive, physical Securities certificate in connection with such transfer upon delivery of a certificate in the form of Exhibit D attached hereto to the Trustee. A Holder of a definitive, physical Security certificate that is a QIB/QP or that is not a U.S. Person or U.S. Resident pursuant to Regulation S may, upon request, and in accordance with the provisions of this Article III , exchange such definitive, physical Security certificate for a beneficial interest in a Global Security.
(B) In the event that a Global Security is exchanged for Securities in definitive, physical registered form without interest coupons, such Securities may be exchanged for one another only in accordance with such procedures and restrictions as are substantially consistent with the provisions above (including certification requirements intended to ensure that such transfers comply with Rule 144A or another exemption from the registration requirements of the Securities Act, or are to non-U.S. Persons and non-U.S. Residents, or otherwise comply with Regulation S, as the case may be) and as may be from time to time adopted by the Company and the Trustee.
(C) Subject to compliance with the transfer restrictions contained in Section 2.2 and Section 3.4(c)(iv) , transfers of interests in a Global Security may be made (x) by book-entry transfer of beneficial interests within the relevant Depositary or (y)(i) in the case of transfers of interests in a Rule 144A Global Security or in a Regulation S Global Security, in accordance with this Article III ; provided , that, in the case of any such transfer of interests pursuant to clause (x) or (y) above, such transfer is made in accordance with subclause (D) below.
(D) Restrictions on Transfers.
(1) Transfers of interests in a Regulation S Global Security to a U.S. Person or a U.S. Resident that is a QIB/QP shall be made by delivery of an interest in the corresponding Rule 144A Global Security and shall be limited to transfers made pursuant to this Article III. Beneficial interests in a Rule 144A Global Security may only be held through the applicable Depositary.
(2) Any transfer of an interest in a Security to a U.S. Person or a U.S. Resident that is not a QIB/QP and/or a institutional accredited investor within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act shall be null and void ab initio and shall not be given effect for any purpose hereunder.
(3) Any transfer of an interest in a Global Security to a U.S. Person or a U.S. Resident that is not a QIB/QP, but who is an institutional accredited investor, may and shall be made by delivery of an interest in definitive, physical Securities and shall be limited to transfers made pursuant to this Article III .
(4) Transfers of interests in a Rule 144A Global Security to a Person that is not a U.S. Person or U.S. Resident shall be made by delivery of an interest in the corresponding Regulation S Global Security and shall be limited to transfers made
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pursuant to this Article III. Beneficial interests in a Regulation S Global Security may only be held through the applicable Depositary.
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The Company, the Guarantor or the Trustee and any agent of the Company, the Guarantor or the Trustee shall treat the Person in whose name any Security is registered as the
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owner of such Security for the purpose of receiving payment of principal of and any interest on such Security and for all other purposes whatsoever, and neither the Company, the Guarantor or the Trustee nor any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary.
All Securities surrendered for payment, redemption, transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Securities surrendered directly to the Trustee for any such purpose shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section 3.8 , except as expressly permitted by this Indenture. All canceled Securities shall be retained or disposed of by the Trustee in accordance with its customary practices and the Trustee shall deliver to the Company a certificate of such disposition.
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Each Security issued hereunder shall provide that the Company and, by its acceptance or acquisition of a Security or a beneficial interest therein, the Holder of, and any Person that acquires a direct or indirect beneficial interest in, such Security, intend and agree to treat such Security as indebtedness of the Company for United States Federal, state and local tax purposes. The provisions of this Indenture shall be interpreted to further this intention and agreement of the parties.
The Company in issuing the Securities may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption and other similar or related materials as a convenience to Holders; provided , that any such notice or other materials may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or other materials and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
This Indenture shall, upon Company Request, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and as otherwise provided in this Section 4.1 ) and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
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and the Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose (x) an amount in the currency or currencies in which the Securities are payable, (y) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (z) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest (including any Additional Interest) to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity (or any date of principal repayment upon early maturity) or Redemption Date, as the case may be;
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.6 , the obligations of the Company to any Authenticating Agent under Section 6.11 and, if money shall have been deposited with the Trustee pursuant to subclause (a)(ii) of this Section 4.1 , the obligations of the Trustee under Section 4.2 and Section 10.2(e) shall survive.
Subject to the provisions of Section 10.2(e ), all money or Government Obligations deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by the Trustee, in accordance with the provisions of the Securities and this Indenture, to the payment in accordance with Section 3.1 , either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
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thereto, of the principal and any premium and interest (including any Additional Interest) for the payment of which such money or obligations have been deposited with or received by the Trustee. Moneys held by the Trustee under this Section 4.2 shall not be subject to the claims of holders of Senior Debt under Article XII .
Event of Default means, wherever used herein with respect to the Securities, any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
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No such rescission shall affect any subsequent default or impair any right consequent thereon.
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the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest (including any Additional Interest) and, in addition thereto, all amounts owing the Trustee under Section 6.6 .
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or similar judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, at the Companys expense, by intervention in such proceeding or otherwise, to take any and all actions authorized hereunder in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to first pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and external counsel, and any other amounts owing the Trustee, any predecessor Trustee and other Persons under Section 6.6 .
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, subject to Article XII and after provision for the payment of all the amounts owing the Trustee, any predecessor Trustee and other Persons under Section 6.6 , be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
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Any money or property collected or to be applied by the Trustee with respect to the Securities pursuant to this Article V shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal or any premium or interest (including any Additional Interest), upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee, any predecessor Trustee and other Persons under Section 6.6 ;
SECOND: To the payment of all Senior Debt of the Company if and to the extent required by Article XII ;
THIRD: Subject to Article XII , to the payment of the amounts then due and unpaid upon the Securities for principal and any premium and interest (including any Additional Interest) in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and any premium and interest (including any Additional Interest), respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled thereto.
Subject to Section 5.8 , no Holder of any Securities shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or for the appointment of a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) or for any other remedy hereunder, unless:
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities, or to obtain or to seek to obtain
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priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium on such Security at its Maturity and payment of interest (including any Additional Interest (to the extent legally enforceable)) on such Security when due and payable and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. The rights of any Holder hereunder or under any other Operative Document may be exercised by such Holder or any collateral manager thereof.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or such Holder, then and in every such case the Company, the Trustee and such Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and such Holder shall continue as though no such proceeding had been instituted.
Except as otherwise provided in Section 3.6(f) , no right or remedy herein conferred upon or reserved to the Trustee or the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or the Holders, as the case may be.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee; provided , that:
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All parties to this Indenture agree, and each Holder of any Security by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.14 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or any premium on the Security after the Stated Maturity or any interest (including any Additional Interest) on any Security after it is due and payable.
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The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
There shall at all times be a Trustee hereunder with respect to the Securities. The Trustee shall be a corporation organized and doing business under the laws of the United States or of any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or state authority and having an office within the United States. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then, for the purposes of this Section 6.1 , the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.1 , it shall resign immediately in the manner and with the effect hereinafter specified in this Article VI .
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Within ninety (90) days after the occurrence of any default actually known to the Trustee, the Trustee shall give the Holders notice of such default unless such default shall have been cured or waived; provided, that except in the case of a default in the payment of the principal of or any premium or interest on any Securities, the Trustee shall be fully protected in withholding the notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interest of holders of Securities; and provided, further, that in the case of any default of the character specified in Section 5.1(c) , no such notice to Holders shall be given until at least thirty (30) days after the occurrence thereof. For the purpose of this Section 6.3 , the term default means any event which is, or after notice or lapse of time or both would become, an Event of Default.
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Subject to the provisions of Section 6.2 :
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The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner
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or pledgee of Securities and may otherwise deal with the Company and the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Securities Registrar or such other agent.
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Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided, that such Person shall be otherwise qualified and eligible under this Article VI . In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation or as otherwise provided above in this Section 6.9 to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated, and in case any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the name of such successor Trustee, and in all cases the certificate of authentication shall have the full force which it is provided anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have.
The recitals contained herein and in the Securities, except the Trustees certificates of authentication, shall be taken as the statements of the Company or the Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
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This represents Securities referred to in the within mentioned Indenture.
Dated:
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WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee |
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Authenticating Agent |
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By: |
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Authorized signatory |
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The Company will furnish or cause to be furnished to the Trustee:
in each case to the extent such information is in the possession or control of the Company and has not otherwise been received by the Trustee in its capacity as Securities Registrar.
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Without the consent of any Holders, the Company and the Guarantor, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
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In executing or accepting the additional trusts created by any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in conclusively relying upon, an Officers Certificate or Directors Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, and that all conditions precedent herein provided for relating to such action have been complied with. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustees own rights, duties, indemnities or immunities under this Indenture or otherwise. Copies of the final form of each supplemental indenture shall be delivered by the Trustee at the expense of the Company to each Holder promptly after the execution thereof.
Upon the execution of any supplemental indenture under this Article IX , this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
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Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Company, bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities.
The Company covenants and agrees for the benefit of the Holders of the Securities that it will duly and punctually pay the principal of and any premium and interest (including any Additional Interest) on the Securities in accordance with the terms of the Securities and this Indenture. As of the date of this Indenture, the Company represents that it has no present intention to exercise its right under Section 3.9 to defer payments of interest on the Securities.
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The Guarantor shall deliver to the Trustee, within one hundred and twenty (125) days after the end of each fiscal year of the Guarantor ending after the date hereof, an Officers Certificate (substantially in the form attached hereto as Exhibit E ) covering the preceding fiscal year, stating whether or not to the knowledge of the signers thereof the Company or the Guarantor is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder), and if the Company or the Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
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All payments of principal of and premium, if any, interest (including any Additional Interest) and any other amounts on, or in respect of, the Securities of any series shall be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Luxembourg or any other jurisdiction in which the Company is organized (each, a taxing jurisdiction ) or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof).
If a withholding or deduction at source is required, the Company shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts ( Additional Amounts ) as may be necessary so that every net payment of principal, premium, if any, interest (including any Additional Interest) or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable; provided , however , that the Company shall not be required to make payment of such Additional Amounts for or on account of:
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Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest (including Additional Interest) or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made.
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The Guarantor may omit in any particular instance to comply with any covenant or condition contained in Section 10.6 if, before or after the time for such compliance, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Guarantor in respect of any such covenant or condition shall remain in full force and effect.
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The Company will treat the Securities as indebtedness, and the amounts, other than payments of principal, payable in respect of the principal amount of such Securities as interest, for all U.S. federal income tax purposes. All payments in respect of the Securities will be made free and clear of U.S. withholding and back-up withholding tax to any beneficial owner thereof that has provided an Internal Revenue Service Form W-9 or W-8BEN (or any substitute or successor form) establishing its U.S. or non-U.S. status for U.S. federal income tax purposes, or any other applicable form establishing a complete exemption from U.S. withholding and back-up withholding tax.
The Company may, at its option, on any Interest Payment Date, on or after July 30, 2012, redeem the Securities in whole at any time or in part from time to time, at a Redemption Price equal to one hundred percent (100%) of the principal amount thereof (or of the redeemed portion thereof, as applicable), together, in the case of any such redemption, with accrued interest, including any Additional Interest (to the extent legally enforceable), through but excluding the date fixed as the Redemption Date (the Optional Redemption Price); provided , that the Company shall have received the prior approval of any Applicable Insurance Regulatory Authorities with respect to such redemption if then required.
Prior to July 30, 2012, upon the occurrence and during the continuation of a Special Event, the Company may, at its option, redeem the Securities, in whole but not in part, at a Redemption Price equal to one hundred seven and one half percent (107.5%) of the principal amount thereof, together, in the case of any such redemption, with accrued interest, including any Additional Interest (to the extent legally enforceable), through but excluding the date fixed as the Redemption Date (the Special Redemption Price), provided , that the Company shall have received the prior approval of any Applicable Insurance Regulatory Authority with respect to such redemption if then required.
The election of the Company to redeem any Securities, in whole or in part, shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company, the Company shall, not less than forty-five (45) days and not more than seventy-five (75) days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such date and of the principal amount of the Securities to be redeemed and provide the additional information required to be included in the notice or notices contemplated by Section 11.5 . In the case of any redemption of Securities, in whole or in part, (a) prior to the expiration of any restriction on such redemption provided in this Indenture or the Securities or (b) pursuant to an election of the Company which is subject to a condition specified in this Indenture or the Securities, the Company shall furnish the Trustee with an
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Officers Certificate or Directors Certificate and an Opinion of Counsel evidencing compliance with such restriction or condition.
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Prior to 10:00 a.m., New York City time, on the Redemption Date specified in the notice of redemption given as provided in Section 11.5 , the Company will deposit with the Trustee or with one or more Paying Agents (or if the Company is acting as its own Paying Agent, the Company will segregate and hold in trust as provided in Section 10.2 ) an amount of money sufficient to pay the Redemption Price of, and any accrued interest (including any Additional Interest) on, all the Securities (or portions thereof) that are to be redeemed on that date.
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The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article XII , the payment of the principal of and any premium and interest (including any Additional Interest) on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Debt of the Company (which for purposes of this Article XII only, shall be defined as Senior Debt) .
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Nothing contained in this Article XII or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company, at any time, except during the pendency of the conditions described in paragraph (a) of Section 12.2 or of any Proceeding referred to in Section 12.2 , from making payments at any time of principal of and any premium or interest (including any Additional Interest) on the Securities or (b) the application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal of and any premium or interest (including any Additional Interest) on the Securities or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in accordance with Section 12.8 ) that such payment would have been prohibited by the provisions of this Article XII , except as provided in Section 12.8 .
Subject to the payment in full of all amounts due or to become due on all Senior Debt, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Debt pursuant to the provisions
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of this Article XII (equally and ratably with the holders of all indebtedness of the Company that by its express terms is subordinated to Senior Debt of the Company to substantially the same extent as the Securities are subordinated to the Senior Debt and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Senior Debt) to the rights of the holders of such Senior Debt to receive payments and distributions of cash, property and securities applicable to the Senior Debt until the principal of and any premium and interest (including any Additional Interest) on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XII , and no payments made pursuant to the provisions of this Article XII to the holders of Senior Debt by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior Debt, and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Debt.
The provisions of this Article XII are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Debt on the other hand. Nothing contained in this Article XII or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the Holders of the Securities, the obligations of the Company, which are absolute and unconditional, to pay to the Holders of the Securities the principal of and any premium and interest (including any Additional Interest) on the Securities as and when the same shall become due and payable in accordance with their terms, (b) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than their rights in relation to the holders of Senior Debt or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, including filing and voting claims in any Proceeding, subject to the rights, if any, under this Article XII of the holders of Senior Debt to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. In addition, nothing contained in this Article XII is intended to or shall apply to or affect any amounts payable or paid to the Trustee (including in its individual capacity) pursuant to Sections 1.15 or 6.6 .
Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee on such Holders behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in this Article XII and appoints the Trustee such Holders attorney-in-fact for any and all such purposes.
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Upon any payment or distribution of assets of the Company referred to in this Article XII , the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XII .
The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article XII or otherwise.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XII with respect to any Senior Debt that may at any time be held by it, to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term Trustee as used in this Article XII shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article XII in addition to or in place of the Trustee; provided, that Sections 12.8 and 12.11 shall not apply to the Company or any Affiliate of the Company if the Company or such Affiliate acts as Paying Agent.
The Guarantor hereby fully, unconditionally and irrevocably guarantees to each Holder of a Security authenticated and delivered by the Trustee the due and punctual payment of the principal of and premium, if any, and interest (including Additional Interest) on such Security, when and as the same shall become due and payable, whether at maturity, by acceleration, upon redemption or otherwise, in accordance with the terms of such Security and this Indenture, as well as the due and punctual performance of all other obligations contained in the Securities and this Indenture (including, if the Company does not pay any Additional
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Amounts required hereunder, any amount necessary to ensure each Holder of a Security receives the full amount of principal and interest due on the Security). In case of the failure of the Company to punctually pay its obligations on any Security, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at maturity, by acceleration, upon redemption or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that it shall be liable as principal and as debtor hereunder with respect to its obligations under this Article. This Article creates a guarantee of payment and not of collection on the part of the Guarantor. The Guarantors obligations hereunder shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security or this Indenture, any failure to enforce the provisions of any Security or this Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Company or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of and premium, if any, and interest (including Additional Interest) on the Securities and the complete performance of all other obligations contained in the Securities and this Indenture. The Guarantor further agrees, to the fullest extent that it lawfully may do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the Securities may be accelerated as provided in this Indenture for purposes of the Guarantors obligations under this Guarantee, notwithstanding any stay, injunction or prohibition existing under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction preventing such acceleration in respect of the obligations guaranteed hereby.
This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time a payment in respect of any Security, in whole or in part, is rescinded or must otherwise be repaid to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company, the Guarantor or otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided , however , that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation as a result of payment under this Guarantee if, after giving effect to any such payment, any amounts are due and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in
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violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay such amount to the Holders.
The Guarantor covenants and agrees, and each Holder of a Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article XIV , the payment of the principal of and any premium and interest (including any Additional Interest) on each and all of the Securities pursuant to the Guarantee are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Debt of the Guarantor.
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Nothing contained in this Article XIV or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Guarantor, at any time, except during the pendency of the conditions described in paragraph (a) of Section 14.2 or of any Proceeding referred to in Section 14.2 , from making payments at any time of principal of and any premium or interest (including any Additional Interest) on the Securities pursuant to the Guarantee or (b) the
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application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal of and any premium or interest (including any Additional Interest) on the Securities pursuant to the Guarantee or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in accordance with Section 14.8 ) that such payment would have been prohibited by the provisions of this Article XIV , except as provided in Section 14.8 .
Subject to the payment in full of all amounts due or to become due on all Senior Debt of the Guarantor, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt of the Guarantor, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Debt of the Guarantor pursuant to the provisions of this Article XIV (equally and ratably with the holders of all indebtedness of the Guarantor that by its express terms is subordinated to Senior Debt of the Guarantor to substantially the same extent as the Guarantee is subordinated to the Senior Debt of the Guarantor and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Senior Debt of the Guarantor) to the rights of the holders of such Senior Debt of the Guarantor to receive payments and distributions of cash, property and securities applicable to the Senior Debt of the Guarantor until the principal of and any premium and interest (including any Additional Interest) on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of the Guarantor of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled under the Guarantee except for the provisions of this Article XIV , and no payments made pursuant to the provisions of this Article XIV to the holders of Senior Debt of the Guarantor by Holders of the Securities or the Trustee, shall, as among the Guarantor, its creditors other than holders of Senior Debt of the Guarantor, and the Holders of the Securities, be deemed to be a payment or distribution by the Guarantor to or on account of the Senior Debt of the Guarantor.
The provisions of this Article XIV are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities under the Guarantee on the one hand and the holders of Senior Debt of the Guarantor on the other hand. Nothing contained in this Article XIV or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as between the Guarantor and the Holders of the Securities, the obligations of the Guarantor under the Guarantee, which are absolute and unconditional, to pay to the Holders of the Securities the principal of and any premium and interest (including any Additional Interest) on the Securities as and when the same shall become due and payable in accordance with their terms, (b) affect the relative rights against the Guarantor of the Holders of the Securities under the Guarantee and creditors of the Guarantor other than their rights in relation to the holders of Senior Debt of the Guarantor or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, including filing and voting claims in any Proceeding, subject to the rights, if any, under this Article XIV of the holders of Senior Debt of the Guarantor to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. In addition, nothing contained in this
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Article XIV is intended to or shall apply to or affect any amounts payable or paid to the Trustee (including in its individual capacity) pursuant to Sections 1.15 or 6.6 .
Each Holder of a Security by such Holders acceptance thereof authorizes and directs the Trustee on such Holders behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in this Article XIV and appoints the Trustee such Holders attorney-in-fact for any and all such purposes.
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Upon any payment or distribution of assets of the Guarantor referred to in this Article XIV , the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt of the Guarantor and other indebtedness of the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XIV .
The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of the Guarantor and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Guarantor or to any other Person cash, property or securities to which any holders of Senior Debt of the Guarantor shall be entitled by virtue of this Article XIV or otherwise.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XIV with respect to any Senior Debt of the Guarantor that may at any time be held by it, to the same extent as any other holder of Senior Debt of the Guarantor, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
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If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term Trustee as used in this Article XIV shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article XIV in addition to or in place of the Trustee; provided , that Sections 14.8 and 14.11 shall not apply to the Guarantor or any Affiliate of the Guarantor if the Company or such Affiliate acts as Paying Agent.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed signature page of this Indenture by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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FLAGSTONE FINANCE S.A., |
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as Issuer |
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By: |
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/s/ Rene Dubois |
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Name: |
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Rene Dubois |
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Title: |
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Duly Authorized Agent |
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Flagstone Reinsurance Holdings Limited, |
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as Guarantor |
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By: |
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/s/ James OShaughnessy |
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Name: |
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James OShaughnessy |
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Title: |
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Chief Financial Officer |
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WILMINGTON TRUST COMPANY, |
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as Trustee |
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By: |
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/s/ Christopher J. Slaybaugh |
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Name: |
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Christopher J. Slaybaugh |
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Title: |
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Senior Financial Services Officer |
S-1
DETERMINATION OF LIBOR
With respect to the Securities, the London interbank offered rate (LIBOR) shall be determined by the Calculation Agent in accordance with the following provisions (in each case rounded to the nearest .000001%):
(1) On the second LIBOR Business Day (as defined below) prior to an Interest Payment Date (except, (i) with respect to the interest payment period commencing on the Original Issue Date for Securities originally issued on June 8, 2007, on June 6, 2007 and (ii) with respect to the interest payment period commencing on any Original Issue Date for Securities originally issued after June 8, 2007, the second LIBOR Business Day prior to such Original Issue Date) (each such day, a LIBOR Determination Date), LIBOR for any given Security shall, for the following interest payment period, equal the rate, as obtained by the Calculation Agent from Bloomberg Financial Markets Commodities News, for three-month U.S. Dollar deposits in Europe, which is displayed on Reuters on page LIBOR01 (or any other page as may replace such page on such service for the purpose of displaying the London interbank rates of major banks for three-month U.S. Dollar deposits in Europe), as of 11:00 a.m. (London time) on such LIBOR Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not appear on Reuters page LIBOR01 or such other page as may replace such Reuters page LIBOR01, the Calculation Agent shall determine the arithmetic mean of the offered quotations of the Reference Banks (as defined below) to leading banks in the London interbank market for three-month U.S. Dollar deposits in Europe in an amount determined by the Calculation Agent by reference to requests for quotations as of approximately 11:00 a.m. (London time) on the LIBOR Determination Date made by the Calculation Agent to the Reference Banks. If, on any LIBOR Determination Date, at least two of the Reference Banks provide such quotations, LIBOR shall equal such arithmetic mean of such quotations. If, on any LIBOR Determination Date, only one or none of the Reference Banks provide such quotations, LIBOR shall be deemed to be the arithmetic mean of the offered quotations that leading banks in the City of New York selected by the Calculation Agent are quoting on the relevant LIBOR Determination Date for three-month U.S. Dollar deposits in Europe in an amount determined by the Calculation Agent by reference to the principal London offices of leading banks in the London interbank market; provided, that if the Calculation Agent is required but is unable to determine a rate in accordance with at least one of the procedures provided above, LIBOR shall be LIBOR as determined on the previous LIBOR Determination Date.
(3) As used herein: Reference Banks means four major banks in the London interbank market selected by the Calculation Agent; and LIBOR Business Day means a day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in London.
Form of Officers Financial Certificate
The undersigned, the [Chief Financial Officer/Treasurer/Assistant Treasurer/ Secretary/ Assistant Secretary, Chairman/ViceChairman/Chief Executive Officer/President/Vice President] hereby certifies, pursuant to Section 7.3(b) and Section 10.3 of the Junior Subordinated Indenture, dated as of June 8, 2007 (the Indenture), among Flagstone Finance S.A. (the Company), Flagstone Reinsurance Holdings Limited (the Guarantor) and Wilmington Trust Company, as trustee, that, as of [date], [20__], the Guarantor, if applicable, and its Subsidiary Insurance Companies (as defined below) had the following ratios and balances:
As of [Quarterly/Annual Financial Date], 20__
Total Policyholders Surplus |
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$ |
_____ |
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Consolidated Debt to Total Policyholders Surplus |
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_____ |
% |
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Total Assets |
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$ |
_____ |
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Return on Policyholders Surplus |
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_____ |
% |
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Net Premiums Written |
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$ |
_____ |
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Expense Ratio |
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_____ |
% |
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Loss and LAE Ratio |
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_____ |
% |
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Combined Ratio |
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_____ |
% |
· A table describing the quarterly report calculation procedures is provided on page 3 hereof
The following is a complete list as of [Quarterly/Annual Financial Data] of the Guarantors subsidiaries which conduct insurance or reinsurance business (the Subsidiary Insurance Companies):
[List of subsidiary insurance companies]
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial statements (including the balance sheet, income statement and statement of cash flows, and notes thereto, together with the report of the independent accountants thereon) of the Guarantor and its consolidated subsidiaries for the three years ended [date], 20__ and the Statutory Financial Statements (as defined in the Indenture) for the one year ended [date] 200_.
Pursuant to Section 10.3 of the Indenture, each of the undersigned hereby certifies that, to the knowledge of the undersigned, neither the Guarantor nor the Company is in default in the performance or observance of any of the terms, provisions or conditions contained in the Indenture (without regard to any period of grace or requirement of notice provided under the Indenture), for the calendar year ending on ________, 20__ [, except as follows: specify each such default and the nature and status thereof. ]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated financial statements (including the balance sheet and income statement) of the Guarantor and its
consolidated subsidiaries and the Statutory Financial Statements (as defined in the Indenture), if any, for the fiscal quarter ended [date], 20__, to the extent applicable.] DISCUSSING.
The financial statements fairly present in all material respects, in accordance with U.S. generally accepted accounting principles (GAAP), the financial position of the Guarantor and its consolidated subsidiaries, and the results of operations and changes in financial condition as of the date, and for the [quarter] [annual] period ended [date], 20__, and such financial statements have been prepared in accordance with GAAP consistently applied throughout the period involved (except as otherwise noted therein).
The Statutory Financial Statements fairly present in all material respects in accordance with Applicable Accounting Principles, as defined in the Indenture, the financial position of the subject insurance company and have been prepared in accordance with Applicable Accounting Principles.
IN WITNESS WHEREOF, the undersigned has executed this Officers Financial Certificate as of this _____ day of _____________, 20__.
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Flagstone Reinsurance
Holdings Limited
Crawford House
23 Church Street, 3
rd
Floor
Hamilton HM11 Bermuda
Financial Definitions
INSURANCE COMPANY
Report Item |
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Description of Calculation |
NAIC Risk Based Capital Ratio-P&C |
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Total Adjusted Capital/Authorized Control Level Risk-Based Capital |
NAICRisk Based Capital Ratio-Life |
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(Total Adjusted Capital-Asset Valuation Reserve)/Authorized Control Level Risk-Based Capital |
Total Capital and Surplus-Life |
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Common Capital Stock + Preferred Capital Stock + Aggregate Write-Ins for other than special surplus funds + Surplus Notes + Gross Paid-In and Contributed Surplus + Aggregate Write-Ins for Special Surplus Funds + Unassigned Funds (Surplus) Treasury Stock |
Total Capital and Surplus-P&C |
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Aggregate Write-Ins for Special Surplus Funds + Common Capital Stock + Preferred Capital Stock + Aggregate Write Ins for other than special surplus funds + Surplus Notes + Gross Paid-In and Contributed Surplus + Unassigned Funds (Surplus) Treasury Stock |
Total Class 1 & 2 Rated Investments to Total Fixed Income Investments |
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(Total Class 1 + Total Class 2 Rated Investments)/Total Fixed Income Investments |
Total Class 1 & 2 Rated Investments to Total Investments |
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(Total Class 1 + Total Class 2 Rated Investments)/Total Investments |
Total Assets |
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Total Assets |
Return on Policyholders Surplus |
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Net Income/Policyholders Surplus |
Expense Ratio |
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Other Underwriting Expenses Incurred/Net premiums Earned |
Loss and LAE Ratio |
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(Losses Incurred + Loss Expenses Incurred)/Net Premiums Earned |
Combined Ratio |
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Expense Ratio + Loss and LAE Ratio |
Net Premiums Written (annualized) to Policyholders Surplus |
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Net Premiums Written/Policyholders Surplus |
Exhibit B
FORM OF REGULATION S GLOBAL SECURITY TRANSFEREE CERTIFICATE
Wilmington
Trust Company,
as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Flagstone Finance
S.A.
Re: Floating Rate Deferrable Interest Junior Subordinated Notes due 2037 (the Securities)
Reference is hereby made to the Junior Subordinated Indenture, dated as of June 8, 2007 (the Indenture ), among Flagstone Finance S.A. , a company organized under the laws of Luxembourg (the Company ), Flagstone Reinsurance Holdings Limited, a company organized under the laws of Bermuda (the Guarantor ), and Wilmington Trust Company, as Trustee. Capitalized terms used but not defined herein shall have the meanings assigned to them pursuant to the Indenture.
This letter relates to U.S. $_______________ aggregate outstanding principal amount of the Companys Floating Rate Deferrable Interest Junior Subordinated Notes due 2037 which are held in the form of an interest in a Rule 144A Global Security with the Depository (144A CUSIP NUMBER:[__], ISIN NUMBER.: [__]) in the name of __________________ [name of transferor] (the Transferor ) to effect the transfer of the Securities in exchange for an equivalent beneficial interest in a Regulation S Global Security in the name of __________________ [name of transferee] (the Transferee ).
In connection with such request, and in respect of such Securities, the Transferee does hereby certify that such Securities are being transferred (i) in accordance with the transfer restrictions set forth in the Indenture relating to the Securities, (ii) in compliance with the transfer restrictions applicable to the Global Securities, including in accordance with Regulation S and (iii) pursuant to an exemption from registration under the United States Securities Act of 1933, as amended (the Securities Act ), and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.
In addition, the Transferee hereby represents, warrants and covenants for the benefit of the Company and the Trustee that:
1. the offer of the Securities was not made to a Person in the United States;
2. at the time the buy order was originated, the Transferee was outside the United States and the transfer constitutes an offshore transaction (within the meaning of Regulation S);
3. no directed selling efforts have been made in contravention of the requirements of Rule 903(a) or 904(a) of Regulation S, as applicable;
4. the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act;
5. Neither the Transferee nor any account for which it is acting is a U.S. Person nor a U.S. Resident (within the meaning of the Investment Company Act);
B-1
6. if the sale is made during a restricted period and the provisions of Rule 903(b)(2) or (3) or Rule 904(b)(1) of Regulation S are applicable thereto, the Transferee confirms that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2) or (3) or Rule 904(b)(1), as the case may be; and
7. for the duration that it holds any interest in such Security, either (i) it is not acquiring such Security with the assets of a Plan or another employee benefit plan subject to applicable law that is substantially similar to Section 406 of ERISA or Section 4975 of the Code or (ii) the acquisition, holding or disposition of such Security by the Transferee, throughout the period that it holds such Security, will not result in a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of another employee benefit plan, any substantially similar applicable law), because the purchase, holding and disposition of such Security is and will be eligible for relief under a prohibited transaction exemption, all of the conditions of which are and will be satisfied upon its acquisition of, and throughout the term that it holds, such Security. The Transferee represents, warrants and covenants that it will not sell, pledge or otherwise transfer such Security in violation of the foregoing.
In addition, the Transferee hereby represents, warrants and agrees with the Company and the Guarantor as to the provisions set forth in Article III of the Indenture.
The Transferee understands that the Company, the Guarantor and the Trustee and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and the Transferee hereby consents to such reliance. Further, the Transferee irrevocably authorizes the Company, the Trustee and their respective counsel to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
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Dated: ___________ __, ____
Taxpayer Identification Number: |
Address for Notices: |
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Wire Instructions for Payments: |
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Account No.: |
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Registered Name (if Nominee):
B-2
Exhibit C
FORM OF RULE 144A GLOBAL SECURITY TRANSFEREE CERTIFICATE
Wilmington
Trust Company,
as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Flagstone Finance
S.A.
Re: Floating Rate Deferrable Interest Junior Subordinated Notes due 2037 (the Securities)
Reference is hereby made to the Junior Subordinated Indenture, dated as of June 8, 2007 (the Indenture ), among Flagstone Finance S.A. , a company organized under the laws of Luxembourg (the Company ), Flagstone Reinsurance Holdings Limited, a company organized under the laws of Bermuda (the Guarantor ), and Wilmington Trust Company, as Trustee. Capitalized terms used but not defined herein shall have the meanings assigned to them pursuant to the Indenture.
This letter relates to U.S. $_______________ aggregate outstanding principal amount of the Companys Floating Rate Deferrable Interest Junior Subordinated Notes due 2037 which are held in the form of an interest in a Regulation S Global Security deposited with the Depository (REG S CUSIP NUMBER: [__] ISIN NUMBER.: [__]) in the name of __________________ [name of transferor] (the Transferor ) and a request by the Transferor to effect the transfer of the Securities in exchange for an equivalent beneficial interest in a Rule 144A Global Security in the name of __________________ [name of transferee] (the Transferee ).
In connection with such request, and in respect of such Securities, the Transferee does hereby certify that such Securities are being transferred in accordance with and in a transaction meeting the requirements of (i) the applicable transfer restrictions set forth in the Indenture relating to the Securities and (ii) Rule 144A under the United States Securities Act of 1933, as amended, and any applicable securities laws of any state of the United States and any other relevant jurisdiction, and that the Transferee is purchasing the Securities for its own account or one or more accounts with respect to which the Transferee exercises sole investment discretion, and the Transferee and any such account (A) are both Qualified Institutional Buyers within the meaning of Rule 144A and Qualified Purchasers as defined in the Indenture, (B) is not a dealer of the type described in paragraph (a)(1)(ii) of Rule 144A unless it owns and invests on a discretionary basis not less than $25,000,000 in securities of issuers that are not affiliated to it, (C) is not a participant-directed employee plan, such as a 401(k) plan, or any other type of plan referred to in paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(i)(F) of Rule 144A that holds the assets of such a plan, unless investment decisions with respect to the plan are made solely by the fiduciary, trustee or sponsor of such plan, and (D) was not formed for the purpose of investing in the Company or the Guarantor(unless each of its beneficial owners is a Qualified Purchaser).
The Transferee hereby represents, warrants and agrees with the Company and the Guarantor as to the provisions set forth in Article III of the Indenture.
Further, the Transferee hereby certifies, represents and warrants that, for the duration that it holds any interest in such Securities, either (i) it is not acquiring such Securities with the assets of a Plan or another employee benefit plan subject to applicable law that is substantially similar to Section 406 of ERISA or Section 4975 of the Code or (ii) the acquisition, holding and disposition of such Securities by the Transferee, throughout the period that it holds such Securities, will not result in a nonexempt
C-1
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of another employee benefit plan, any substantially similar applicable law), because the purchase, holding and disposition of such Securities is and will be eligible for relief under a prohibited transaction exemption, all of the conditions of which are and will be satisfied upon its acquisition of, and throughout the term that it holds, such Securities. The Transferee represents, warrants and covenants that it will not sell, pledge or otherwise transfer such Securities in violation of the foregoing.
The Transferee understands that the Company, the Guarantor, the Trustee and their respective counsels will rely upon the accuracy and truth of the foregoing representations, and the Transferee hereby consents to such reliance. Further, the Transferee irrevocably authorizes the Company, the Guarantor, the Trustee and their respective counsel to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
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Dated: ___________ __, ____
Taxpayer Identification Number: |
Address for Notices: |
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Wire Instructions for Payments: |
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Registered Name (if Nominee):
The Transferor agrees to the foregoing and certifies that it reasonably believes that such Transferee and its accounts, if any, are both Qualified Institutional Buyers within the meaning of such Rule 144A and Qualified Purchasers as defined in the Indenture.
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C-2
Exhibit D
FORM OF NON-GLOBAL SECURITY TRANSFEREE CERTIFICATE
Wilmington
Trust Company,
as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Flagstone Finance
S.A.
Re: Floating Rate Deferrable Interest Junior Subordinated Notes due 2037 (the Securities)
Reference is hereby made to the Junior Subordinated Indenture, dated as of June 8, 2007 (the Indenture ), among Flagstone Finance S.A. , a company organized under the laws of Luxembourg (the Company ), Flagstone Reinsurance Holdings Limited, a company organized under the laws of Bermuda (the Guarantor ), and Wilmington Trust Company, as Trustee. Capitalized terms used but not defined herein shall have the meanings assigned to them pursuant to the Indenture.
This letter relates to U.S. $_______________ aggregate outstanding principal amount of the Companys Floating Rate Deferrable Interest Junior Subordinated Notes due 2037 in the name of __________________ [name of transferor] (the Transferor ) and a request by the Transferor to effect the transfer of the Securities in exchange for an equivalent beneficial interest in Security in the name of __________________ [name of transferee] (the Transferee ).
In connection with such request and our purchase of the Securities, the Transferee does hereby certify that:
1. We understand that the Securities have not been registered under the Securities Act and may not be offered or sold except as permitted in the Indenture and in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing the Securities that, if we decide to offer, sell or otherwise transfer any such Securities, (i) such offer, sale or transfer will be made only (a) to the Company or the Guarantor, (b) pursuant to Rule 144A to a person we reasonably believe is a Qualified Institutional Buyer that purchases such Securities for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the transfer is being made in reliance on Rule 144A, (c) to a person that is neither a U.S. Person (as defined in Regulation S) nor a U.S. Resident (within the meaning of the Investment Company Act) in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S, acting for its own account or for the account of one or more Persons with respect to which it exercises sole investment discretion, each of which is neither a U.S. Person (as defined in Regulation S) nor a U.S. Resident (within the meaning of the Investment Company Act) (a Regulation S Purchaser ), or (d) pursuant to an exemption from the registration requirements of the Securities Act to an accredited investor within the meaning of subparagraph (a)(1),(2), (3) or (7) of Rule 501 under the Securities Act (an Institutional Accredited Investor ) that is acquiring such Securities for its own account, or for the account of such an Institutional Accredited Investor, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, subject to the requirements of the Indenture and to the right of the Company and the Guarantor prior to any such offer, sale or transfer pursuant to clause (d) above to require the delivery of an opinion of counsel, certification and/or other information satisfactory to the Company and the Guarantor. We understand that the
D-1
Certificates for any security that we receive will bear a legend substantially to the effect of the foregoing and agree to notify each transferee of the resale restrictions referred to therein.
2. We acknowledge the matters specified in paragraph 1 above, represent that we satisfy the conditions specified for transferees in paragraph 1 above and certify that we are an Institutional Accredited Investor. In addition, we represent that we have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks or our investment in the Securities, and we and any account for which we are acting are each able to bear the economic risks of our or its investment for an indefinite period of time.
3. We are acquiring the Securities purchased by us for our own account (or for one or more accounts as to each of which we exercise sole investment discretion and have authority to make, and do make, the statements contained in this Certificate) and not with a view to any distribution of the Securities, subject, nevertheless, to the understanding that the disposition of our property will, at all times, be and remain within our control.
4. In the even that we purchase any Securities, we will acquire such Securities having an aggregate principal amount not less than $100,000, for our own account and for each separate account for which we are acting.
5. We acknowledge that we are not a fiduciary of (i) an employee benefit, individual retirement account or other plan or arrangement subject to Title I of ERISA or section 4975 of the Code; of (ii) an entity whose underlying assets include plan assets by reason of any Plans investment in the entity, and are not purchasing any of the Securities on behalf of or with plan assets by reason of any Plans investment in the entity.
6. We acknowledge that the Company and the Guarantor and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations, warranties and agreements and agree that if any of the acknowledgments, representations, warranties and agreements deemed to have been made by our purchase of any of the Securities are no longer accurate, we shall promptly notify the Company and the Guarantor. If we are acquiring any Securities as a fiduciary or agent for one or more investor accounts, we represent that we have sole discretion with respect to each such investor account and that we have full power to make the foregoing acknowledgments, representations, warranties and agreements on behalf of each such investor account.
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Dated: ___________ __, ____
D-2
Upon transfer, the Securities (having a principal amount of $[______________]) shall be registered in the name of the new beneficial owner as follows:
Name: _______________________________________
Address: ________________________________________
________________________________________
Taxpayer ID Number: ______________________________
D-3
Exhibit E
FORM OF
OFFICERS CERTIFICATE
UNDER
SECTION 10.3
Pursuant to Section 10.3 of the Junior Subordinated Indenture, dated as of June 8, 2007 (as amended or supplemented from time to time, the Indenture), among Flagstone Finance S.A., as issuer (the Company), Flagstone Reinsurance Holdings Limited, as guarantor (the Guarantor), and Wilmington Trust Company, as trustee, each of the undersigned hereby certifies in such capacity listed and not individually that, to the knowledge of the undersigned, neither the Company nor the Guarantor is in default in the performance or observance of any of the terms, provisions or conditions contained in the Indenture (without regard to any period of grace or requirement of notice provided under the Indenture) for the fiscal year ending on _________, 20__ [,except as follows: specify each such default and the nature and status thereof ].
Capitalized terms used herein, and not otherwise defined herein, have the respective meanings assigned thereto in the Indenture
IN WITNESS WHEREOF, the undersigned have executed this Officers Certificate as of _____________, 20__
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[Must be the Chairman of the Board, a Vice Chairman of the Board, a Deputy Chairman, the Chief Executive Officer, the President, General Counsel or a Vice President] of Flagstone Reinsurance Holdings Limited |
E-1
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[ Must be the Chief Financial Officer, a Manager, a Director, the Treasurer, a Vice Treasurer, the Secretary or an Assistant Secretary ] of Flagstone Reinsurance Holdings Limited |
E-2